Supreme Court Questions ECI Choice of Shiv Sena Symbol, Asks Why Both Factions Were Not Left to Contest on Their Own Strength

The Supreme Court on September 16, questioned the Election Commission of India (ECI) over its decision to award the Shiv Sena name and the “bow and arrow” symbol to the Eknath Shinde faction, asking whether the Commission could have adopted a neutral course if the available tests for identifying the party were found difficult to apply.

A Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana was hearing the batch of petitions concerning the Shiv Sena split, including the challenge to the ECI's decision and proceedings concerning the disqualification of MLAs.

The hearing remained inconclusive and is continuing.

Background

The dispute arose after the Shiv Sena split into two factions in 2022. The ECI was subsequently called upon to decide which faction was entitled to use the party's name and reserved election symbol.

The Commission examined factors including the party constitution, organisational structure and legislative strength. It ultimately relied on the legislative majority after finding difficulties with the organisational test.

The Shinde faction had a larger number of legislators, with the ECI recording support from 40 MLAs compared with 15 on the Thackeray side. In the Lok Sabha, 13 of the party's 18 MPs supported the Shinde faction, according to the Commission's order.

Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, defended the ECI's approach. He submitted that the organisational structure was not a reliable indicator because a large number of members were nominated and the rival factions had conflicting claims.

Justice Bagchi questioned whether legislative strength could safely be treated as decisive when disqualification proceedings involving legislators were also pending.

“The legislative test, though a relevant test, will not always be the determinative test or in a given situation where disqualifications are being adjudicated, will be a very safe test.”

The Bench also raised the possibility that the ECI could have denied the reserved symbol to both sides if all available tests had limitations.

“If all the tests stood vitiated, there was always the option available to them not to give an advantage to either of these groups. Let them select their own symbols and fight on their own strength, not on Balasaheb’s.”

Justice Bagchi further distinguished between a political party and its legislative wing, observing that the symbol dispute concerns the political party, whereas disqualification proceedings examine the conduct of individual legislators.

Kaul maintained that the ECI had considered the available options and that, given the particular circumstances, legislative majority was the only workable test. He also argued that the Supreme Court's earlier decision in Subhash Desai did not prevent the Commission from considering legislative strength under Paragraph 15 of the Election Symbols Order.

The Court indicated that its role was one of judicial review and that it would examine whether the ECI had properly considered the legally available options rather than substitute its own assessment for that of the Commission.

The Supreme Court did not pronounce a final decision on the petitions during Wednesday's hearing. Arguments in the matter are continuing.