Sena vs Sena: SC to hear plea against EC decision on ‘Bow and Arrow’ dispute tomorrow

The Supreme Court announced on Tuesday that it will hear Uddhav Thackeray’s petition challenging the Election Commission’s decision to give the name ‘Shiv Sena’ and the emblem ‘Bow and Arrow’ to the group led by Maharashtra Chief Minister Eknath Shinde on Wednesday.

The panel, chaired by Chief Justice of India DY Chandrachud, consented to hear the petition on February 22 at 3.30 p.m. Senior Counsel Kapil Sibal requested the Supreme Court to consider the petition on Wednesday, claiming that if the EC ruling is not disputed and challenged, the rival faction will seize control of everything, including the party’s money accounts.

CJI Chandrachud said, “It will not disrupt the Constitution Bench hearing because three judges are waiting for them.” He stated that he would end the Constitution Bench hearing on the Maharashtra political crisis on Wednesday and then take up the case contesting the EC’s verdict on the Sena symbol.

The court stated that it will first read the case. The Shiv Sena faction led by Uddhav Thackeray filed a petition in the Supreme Court challenging the EC’s decision to grant the name “Shiv Sena” and the “Bow and Arrow” symbol to the opposition faction represented by CM Shinde. In the request, Uddhav Thackeray further argued that the parliamentary majority alone could not be used to justify the EC’s decision.

Uddhav Thackeray, who challenged the EC ruling, stated that  “the entire edifice of the impugned order (EC’s decision) is based upon the purported legislative majority of the Respondent (Shinde) which is an issue to be determined by the top court in the Constitution Bench”.

“The ECI has failed to consider that the Petitioner enjoys a majority in the Legislative Council (12 out of 12) and Rajya Sabha (3 out of 3). It is submitted that in a case of this kind where there is a conflict even in the legislative majority i.e., Lok Sabha on the one hand and Rajya Sabha on the other as well as Legislative Assembly and Legislative Council, more particularly, having regard to the fact that there is a possibility of the alleged members losing their right of membership, the legislative majority alone is not a safe guide to determine as to who holds the majority for the purposes of adjudicating a petition of the Symbols Order,” the plea said.

“In these circumstances, it is respectfully submitted that the legislative majority test cannot be the test which can be applied for the purposes of determination of the present dispute,” it added.

Uddhav Thackeray stated the EC has erred in ruling that there is a divide in the political party, arguing that  “in the absence of any pleadings and evidence that there was a split in a political party, the finding of the ECI is completely erroneous on this ground”.

“The ECI’s parliamentary majority test could not have been applied at all because disqualification proceedings were pending against the parliamentarians who supported the Respondent. If the legislators are found to be disqualified in the disqualification process, it is impossible for them to create a majority. As a result, the constitutionality of the assailed order itself is called into question “According to the EC.

Uddhav claimed that the EC failed to recognise his enormous support among the party’s rank and file. He claimed that his faction has an overwhelming majority in the ‘Pratinidhi Sabha,’ the ultimate representative body expressing the wishes of the party’s main members and other stakeholders.

Article VIII of the party constitution recognises the Pratinidhi Sabha as the supreme body. Questing the EC, the former Maharashtra CM said the poll panel had violated the constitutionality test by stating that the constitution of the party cannot be considered sacred as the same could not be termed to be ‘democratic’.

Uddhav further claimed that the EC has failed to fulfil its obligations as a neutral arbiter of disputes and has behaved in a way that undermines its constitutional position.

He stated that the poll panel ignored the party constitution of 2018, which was admitted even by the respondent, Shinde, to be the party constitution, on the grounds that it is undemocratic and was not communicated to the Commission.

“These observations are totally erroneous as the amendments in the Constitution were categorically communicated to the Commission in 2018 itself,” Uddhav said in his plea.

“The petitioner enjoys the support of 160 of approximately 200-odd members in the Pratinidhi Sabha. The petitioner had demonstrated before the EC an overwhelming majority by filing affidavits of the members of the organisational wing of the party,” the plea stated.