Shiv Sena Symbol Row | 'Voter Votes for Party, Not Representative': Supreme Court Questions Legislative Majority Test

The Supreme Court on September 17, questioned whether the legislative strength of rival factions could by itself establish which group represents a political party, particularly when the legislators had changed their political allegiance after being elected.

A Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing the challenge concerning the Election Commission of India’s decision recognising the Eknath Shinde faction as Shiv Sena and allowing it to use the party’s ‘bow and arrow’ symbol.

Background of the Case

The dispute followed the 2022 split in Shiv Sena between the factions led by Uddhav Thackeray and Eknath Shinde. The Election Commission ultimately relied primarily on the legislative strength of the two groups after finding that the organisational wing did not provide a satisfactory basis for resolving the dispute.

The Shinde faction had 40 MLAs compared with 15 supporting the Thackeray faction. In the Lok Sabha, 13 of Shiv Sena’s 18 elected MPs supported Shinde, while five supported Thackeray.

Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, defended the Election Commission’s approach. He argued that pending disqualification proceedings under the Tenth Schedule could not erase the electoral strength obtained by legislators in the 2019 elections.

Supreme Court's Observations

Justice Joymalya Bagchi questioned whether votes cast when Shiv Sena was still united could later be treated as votes supporting one faction after the split.

"Today, the voter actually votes for a party, not for the representative."

The Court questioned whether such votes could accurately demonstrate support for a faction that emerged only after the political split.

"Once their split is there, you don't know whether that person who voted would have voted for this split Shiv Sena candidate."

Justice Bagchi also raised questions about the Election Commission’s exercise of discretion. He clarified that judicial review did not mean that the Supreme Court would replace the Commission’s decision with its own, but the Court could examine whether relevant possibilities had been considered.

"I have never said that the decision will be wrong because of this," the judge remarked, while questioning whether "all options have been addressed."

Arguments on Legislative Majority

Kaul submitted that the Election Commission had not merely counted legislators. According to his submissions, it considered vote shares, the strength of the rival factions in the Maharashtra Assembly and Parliament, and other available material.

He also relied on the Constitution Bench decision in Subhash Desai v. Election Commission of India, arguing that the judgment did not completely prohibit the use of legislative majority while determining a party dispute.

The Court, however, examined whether pending proceedings under the Tenth Schedule should have affected the manner in which the legislative-majority test was applied.

Court Examines Alternative

The Bench also considered whether both factions could have continued with separate symbols instead of one faction receiving the reserved Shiv Sena symbol.

Justice Bagchi clarified that the suggestion was not being put forward as the only possible solution.

"I'm not saying that that third option is the only option," he said.

The hearing was adjourned for continuation the following week. No final ruling on the validity of the Election Commission’s decision was pronounced during the hearing.