SHIV SENA Law Insider

Sakina Tashrifwala

Published on: 28 September 2022 at 20:09 IST

The Supreme Court on Tuesday declined to stay the Election Commission of India from ruling on Eknath Shinde’s claim to be the true Shiv Sena. After a day of deliberation, a Constitution Bench of the Supreme Court denied the Uddhav Thackeray group’s appeal for a stay.

“We direct that the proceedings before the Election Commission of India not be stayed. As a result, the Interlocutory Application is denied “The order was imposed by the bench.

A 5-judge Bench comprised of Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha was hearing an interim application filed by the Uddhav Thackeray group to prevent the Election Commission of India from ruling on Eknath Shinde’s claim to be the official Shiv Sena party.

During the hearing, the bench questioned Senior Advocate Kapil Sibal of the Uddhav group in what capacity Shinde approached the Election Commission of India (ECI) with his claim to be the actual Shiv Sena.

Sibal said that that was the entire issue since Shinde could not seek the ECI after being disqualified. “I questioned the individual who changed the EC’s locus,” Sibal explained.

The bench then inquired as to which powers of the ECI had been invoked. Sibal said that Shinde’s claim is based on the Election Symbols (Reservation and Allotment) Order and the Supreme Court’s judgement in the Sadiq Ali case.

He went on to say that when the Supreme Court issued its verdict in Sadiq Ali and Anr. v. Election Commission of India and Anr., the Tenth Schedule had yet to be included into the Constitution.

He maintained that Shinde was disqualified because his multiple acts/omissions amounted to ‘voluntarily giving up membership in the party’ under Tenth Schedule paragraph 2(1)(a). In addition, he has breached the party whip, as defined in paragraph 2(1)(b) of the Tenth Schedule.

“Is the conflict over the legislature party affecting the Election Commission’s jurisdiction over the political party?”

The bench noted that the matter concerns the Speaker’s power under the Tenth Schedule as well as the Election Commission’s jurisdiction over the symbol order.

“The political party is a considerably larger configuration than the legislative unit of that party, which comprises of elected members…does the debate in the legislative unit influence the power of the Election Commission? That is the crux of the problem “, noted Justice Chandrachud.

Sibal said that the legislature party operates inside the framework of the political party and that an umbilical cord connects them.

The bench inquired as to how disqualification under the tenth schedule would affect the Symbols order. Allowing a disqualified member to seek the Election Commission, Sibal responded, may mark the end of democracy.

“Then any government may be deposed, and they will have their own Speaker who will not rule on disqualification,” the senior attorney responded.

He emphasised that disqualification under the Tenth Schedule is retroactive to the time when the crimes were committed and is not applicable just from the date of determination. When an elected member writes to the Governor in opposition to his own administration, he is willingly leaving the party.

Order of Election Symbols Ambition

Sibal said that the Election Symbols Order can be applied only where the claimant is a member of the same political party as the claimant and claims to be a member of a rival organisation. He relied on Symbols Order paragraph 15.

So, if a member has willingly resigned from the party, he cannot utilise Paragraph 15. As a result, the judgement on disqualification has a significant impact on the Election Commission’s authority.

Consistency of convenience

Sibal went on to say that the balance of convenience favoured the Uddhav faction. He informed the Bench that the Supreme Court has granted a stay of proceedings in the Brihanmumbai Municipal Corporation polls on August 22. There will be no elections in the near future. He went on to say that enabling the ECI to resolve Shinde’s claim might cause “irreparable harm” to the Uddhav organisation.

The sole defence under the tenth schedule is merger.

Dr. Abhishek Manu Singhvi, a senior advocate, complemented Sibal’s arguments for the Uddhav faction. He emphasised that the sole defence under the Tenth Schedule is merging with another political party. Under the anti-defection statute, there is no idea of “split.”

“In whatever shape the Shiv Sena exists today, they have no claim that they have amalgamated with the BJP”, Singhvi remarked.

“You have left the Shiv Sena, but you want the Shiv Sena’s goodwill, therefore you will not combine,” he continued.

Can the Tenth Schedule impair the authority of the Election Commission? Bench inquires

During the hearing, Justice Chandrachud made the following observation: “What’s problematic is that the entire idea of disqualification is based on the house. The Election Commission has the authority to select who represents a political party. What occurs on the House floor is a microcosm of the effects of elections. That is an issue where consideration must be given “.

“Your view is that because the legislature party has been taken into disqualification procedures, the Election Commission should be barred from selecting the non-legislative party…there is an area with a little bit of…”, Justice Chandrachud continued.

In response, Singhvi cited the Sadiq Ali case, stating that in 1968, the Election Commission considered the number of legislators in the legislature party when assessing who was the true representation of the party.

“The Symbols Order is based on a disagreement, not a disqualification petition. It never considered the legal ramifications of a person’s disqualification. As a result, it is logically preceding the disqualification “ Singhvi explained. It was also emphasised that the Symbols Order was issued prior to the incorporation of the tenth schedule into the Constitution.

Because CM Thackeray resigned, a loss of trust in the government might be assumed.

Senior Advocate Maninder Singh, representing the Shinde faction, claimed that there was a pre-election pact. A day before the floor test, Uddhav Thackeray resigned as Chief Minister. As a result, it must be assumed that he lost his majority. These facts demonstrate that the petitioners have no prima facie case.

Dissent and disagreement are natural parts of intra-party democracy.

Singh went on to say that disagreements and dissent are natural parts of intra-party democracy. He used Paragraph 15 of the Symbols Order to argue that ECI has the authority to make decisions about competing divisions or breakaway organisations of a political party. The ECI’s authority does not have to be founded on a complaint, and it can be used on its own initiative.

He pointed out that the eleventh timetable does not define the word “political party.” The Election Commission is solely responsible for recognising political parties. As a result, the Speaker’s decision under the Tenth Schedule on “giving up membership in a political party” can only be based on the ECI’s judgement under the Symbols Order.

Senior Advocate Mahesh Jethmalani, representing the Shinde group, argued that the idea of “deemed disqualification” does not exist. The Governor cannot consider any “possible disqualification” when asking a party to form government since the primary aim is to guarantee a stable administration.

Solicitor General Tushar Mehta, representing the Maharashtra Governor, argued that the Election Commission should be permitted to carry out its mandate.

“This is a political matter, and it is not the first time that such a split has occurred, and it is difficult to determine which faction is the true party. The election commission is equipped to investigate this” SG said. The disqualification will only effect legislative party membership and will not affect political party membership.

Uddhav Gang Re-joins

In reply, Sibal claimed that voluntary giving up of membership of party might take place by activities outside the house. There can be no idea of majority or minority in a party since divide is no longer acknowledged. That is irrelevant for the purposes of the Tenth Schedule.

He emphasised that, according to ECI records, Uddhav Thackeray remains the Shiv Sena party’s President from 2018 to 2023, whereas Shinde has lost party membership as a result of his actions under Paragraph 2 of the Tenth Schedule.

“The Election Commission is saying, ‘I am not concerned with what is going on in the house; even if you have willingly given up party membership, even if you are disqualified, I will presume you as a party member.’ That is not something the Election Commission can do “Sibal complied. Those who are rejected are not eligible to receive a party symbol.

Paragraph 15 of the Symbols Order assumes legitimacy in the context of party membership and two factions deriving from valid party membership claiming to be the true party. The Election Commission is not authorised to disregard the Tenth Schedule under Section 15. If the Election Commission rules in favour of Shinde, Uddhav Thackeray’s petitions will be rendered null and void.

In response to the idea of inside-party democracy, Sibal stated that “inner party democracy in the framework of the Tenth Schedule does not imply you join up with the opposing party and overthrow your administration.”

Following the parties’ arguments, the bench issued an order rejecting the application.


On August 23, 2002, a three-judge bench led by the then-Chief Justice of India, N.V. Ramana, referred the problems emerging from the Shiv Sena party schism to a Constitution Bench.

The following legal issues have been referred to the Constitution Bench for consideration:

A. Whether the speaker’s dismissal notice precludes him from pursuing the disqualification procedures under Schedule X of the Indian Constitution, as the Court decided in Nabam Rebia;

B. Whether a petition under Articles 226 and 32 exists, requesting the High Courts or the Supreme Court to rule on a disqualification process;

C. Can a court rule that a member is disqualified because of his or her behaviour in the absence of a decision by the Speaker?

D. What is the status of procedures in the House when disqualification petitions against members are pending?

E. If the decision of speaker that a member was incurred disqualification under the Tenth Schedule refers back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?

F. What effect does the elimination of Paragraph 3 of the Tenth Schedule have? (which excluded the phrase “split” in a party as a defence to disqualification procedures)

G. What is the scope of the Speaker’s authority to appoint the parliamentary party’s whip and leader of the house?

H. What is the relationship between the Tenth Schedule provisions?

Is judicial review available for intra-party disputes? What exactly is the scope of the same?

J. Does the governor have the authority to ask someone to form the government, and if so, is this subject to court review?

H. What are the powers of the Election Commission of India in terms of discouraging an ex prate split within a party?

The 3–Judge Bench made the judgement to refer after considering the points raised in the subsequent batch of petitions –

  • Petition preferred by rebel Shiv Sena leader Eknath Shinde (now Chief Minister) challenging the Deputy Speaker’s disqualification notices, and plea filed by Bharat Gogawale and 14 other Shiv Sena MLAs seeking to prevent the Deputy Speaker from acting on the disqualification petition until the resolution to remove the Deputy Speaker is decided. On June 27, a division bench of Justices Surya Kant and JB Pardiwala extended till July 12 the deadline for the dissident MLAs to file written answers to the Deputy Speaker’s disqualification notice.
  • Shiv Sena Chief Whip Sunil Prabhu filed a petition contesting the Maharashtra Governor’s order to the Chief Minister to show the Maha Vikas Aghadi Government’s majority.
  • Sunil Prabhu, the whip designated by the Uddhav Thackeray-led group, filed a petition contesting the decision of the newly elected Maharashtra Assembly Speaker in recognising the whip nominated by the Eknath Shinde group as Shiv Sena Chief Whip.
  • Mr. Subhash Desai, General Secretary of the Shiv Sena, filed a petition challenging the Maharashtra Governor’s decision to invite Eknath Shinde to be Chief Minister of Maharashtra, as well as the subsequent proceedings of the State’s Legislative Assembly held on 03.07.2022 and 04.07.2022 as ‘illegal.’
  • 14 MLAs from the Uddhav faction filed a petition contesting the newly elected Speaker’s start of unlawful disqualification procedures against them under the Tenth Schedule.

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