Supreme Court Examines Whether Legislative Split Can Percolate Into Political Party In Shiv Sena Symbol Dispute

The Supreme Court on Wednesday (12 August) examined a significant question arising from the Shiv Sena name and symbol dispute: can a split that begins in a party's legislative wing later extend into its wider political organisation and primary membership?

A three-judge Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana considered the issue while hearing the challenge to the Election Commission of India's decision recognising the Eknath Shinde-led faction as the Shiv Sena and allotting it the party's bow-and-arrow symbol. The hearing was part of Sunil Prabhu v. Eknath Shinde & Ors.

Background Of The Dispute

The dispute arose after the Shiv Sena split in 2022. The Shinde faction approached the Election Commission under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, seeking recognition of the party name and symbol.

The ECI ultimately relied substantially on the strength of the legislative wing. It found that the Shinde faction had greater support among the party's elected representatives and accordingly allowed it to retain the Shiv Sena name and bow-and-arrow symbol.

The Uddhav Thackeray faction has challenged that decision before the Supreme Court.

Supreme Court Examines Legislative And Organisational Split

Senior Advocate Kapil Sibal, appearing for the Thackeray faction, argued that a division within the legislative party could not, by itself, establish a split in the political party.

He relied on the Constitution Bench ruling in Subhash Desai v. Principal Secretary, Governor of Maharashtra, which had distinguished between the political party and its legislative wing.

Justice Bagchi, however, indicated that the Court would have to examine whether a legislative split could subsequently be reflected in the broader organisation.

“The Constitution Bench says that the proposed split cannot be restricted to a split in the legislature party,” Justice Bagchi observed, adding that if such a split later “gets reflected in the organisation and the primary membership”, it may have to be considered.

The judge described the legislative split as potentially being the “epicentre of a larger split”.

Court Questions Relevant Date For ECI's Jurisdiction

The Bench also questioned whether the Election Commission must examine the position existing when a rival faction approaches it, or whether later developments can also be considered before the dispute is finally decided.

Sibal maintained that the crucial date was July 19, 2022, when the Shinde faction approached the ECI. According to him, there was insufficient material before the Commission on that date to establish a split in the political party itself.

The Chief Justice also observed that if the required threshold for jurisdiction existed, an incorrect exercise of that jurisdiction would be a different question from the Commission having no jurisdiction at all.

Sibal Raises Democratic Concern

During the hearing, Sibal argued that permitting a legislative wing to separate, claim the identity of the parent party and eventually facilitate the formation of another government could undermine democratic principles.

He questioned how a legislative faction could effectively be treated as the political party and warned against an interpretation that could allow governments to be changed through such developments.

Justice Bagchi noted that the Court was dealing with a “living democracy”.

Court's Decision

The Supreme Court did not finally decide the dispute during Wednesday's hearing. The Bench continued examining the scope of Paragraph 15 of the Election Symbols Order, particularly whether a legislative split can acquire significance when it subsequently reaches the party's organisational structure.

The hearing was directed to continue on Thursday.