Battle for the Bow and Arrow
The Shiv Sena dispute before the Supreme Court is no longer just about MLAs and symbols, but about what legally defines a political party.
The fight over the Shiv Sena has moved well beyond Maharashtra’s familiar political theatre. In the Supreme Court, the dispute has narrowed to a question that is less dramatic on the surface but potentially far more consequential: what exactly makes a political party a political party?
Is it the elected strength of its legislators? The organisation outside the legislature? The party constitution on record with the Election Commission? Or some combination of all three?
That question lies at the centre of the legal battle between the factions led by Eknath Shinde and Uddhav Thackeray.
Two Claims
Senior advocate Neeraj Kishan Kaul, appearing for the Shinde faction, has defended the Election Commission’s February 17, 2023 decision, recognising the Shinde camp as the Shiv Sena and allotting it the bow-and-arrow symbol. The Thackeray faction has challenged that decision. The bench is also dealing with challenges connected to the Maharashtra Assembly Speaker’s January 2024 decision on disqualification petitions.
The Thackeray faction, represented by senior advocates Kapil Sibal and Devadatt Kamat, has drawn a sharp distinction between the political party and its legislature wing.
Its argument is a group of MLAs breaking away from the legislative wing does not automatically mean that the political party itself has changed hands. The party’s organisation, structure and identity cannot simply be equated with the numbers sitting in the Assembly.
The Shinde faction says the dispute was never merely about legislators walking out. According to its argument, the rupture extended into the wider political organisation, with competing meetings, resolutions and claims of support from party workers and functionaries. The legislative split was, in its telling, only one visible part of a larger party-wide conflict.
That distinction determines whether the Election Commission could legitimately intervene under Paragraph 15 of the Election Symbols Order and decide which rival faction represented the recognised political party. Kaul has argued that the Commission was entitled to consider the wider organisational dispute rather than treating the matter as a purely legislative rebellion.
Constitutional Tussle
The courtroom fight has also brought an old Shiv Sena document back into the spotlight. Kaul has relied heavily on the constitution placed on record with the Election Commission after the poll panel raised objections to the party’s earlier structure. The material before the court says the Commission had, in the late 1990s, pushed for a more democratic organisational structure, including changes to the manner in which party office-bearers were selected. The 1999 constitution subsequently went on record.
The Shinde side says the 2018 constitution represented a significant departure from that structure. Its argument is that the later arrangement concentrated substantial authority in the party chief and relied extensively on nominated or appointed office-bearers rather than elected organisational bodies. It has also questioned why its leaders participated in the organisational structure created under the 2018 arrangement and did not object to it at the time.
Kaul has further argued that the 2018 constitution relied upon by the Thackeray faction was not registered with the Election Commission, while the 1999 constitution was on the Commission’s record. This has become a significant element of the Shinde faction’s case.
The Thackeray faction, meanwhile, has relied on the Supreme Court’s earlier Constitution Bench judgment in the Subhash Desai matter to reinforce the distinction between a political party and its legislature party.
The earlier judgment’s discussion about not conflating the political party with its legislature wing arose in the context of questions such as who could appoint the whip. It did not, according to the Shinde side, mean that the Election Commission must ignore legislative strength altogether when determining which faction represents a recognised political party.
The Shinde side has also invoked the Sadiq Ali case, arguing that legislative majority remains a relevant consideration in a party-symbol dispute.
The case has therefore increasingly begun to look like a legal examination of the Election Commission’s decision-making process.
The Thackeray faction has questioned the Commission’s jurisdiction and the basis on which it concluded that there was a party-wide split. Its challenge effectively asks whether the Commission went too far in examining the internal structure of the Shiv Sena.
The Shinde faction argues that Article 324 gives the Election Commission broad powers and that, when two groups claim the same recognised party, the Commission has to examine the party constitution, organisational structure and available evidence to identify which group represents the party.
The practical difficulty is obvious. The Election Commission cannot ask every Shiv Sena member whom they support. Nor can it conduct a referendum among every booth-level worker. Kaul has therefore defended the organisational-majority approach as a workable method of assessing cadre support through recognised organisational bodies and elected representatives.
The Shinde camp has also brought the events after the 2019 Maharashtra Assembly election into the argument. Shiv Sena and BJP fought the election together, but the government subsequently formed under Uddhav Thackeray was with Congress and NCP. According to the Shinde side, that political realignment created discontent among sections of the Shiv Sena organisation and contributed to the eventual split.
The Thackeray faction disputes the broader narrative and maintains that the legislative rebellion cannot simply be converted into proof that the political party itself changed hands. It has also challenged the Maharashtra Speaker’s decision not to disqualify MLAs from either faction. The Supreme Court has examined questions about what could follow if that decision were set aside, including whether consequential disqualification could arise under the Tenth Schedule.
Party recognition and legislative disqualification arise under different legal frameworks. The Shinde side has argued that earlier cases concerning disqualification cannot simply be transplanted into the Election Commission’s determination under the Symbols Order.
The real question is no longer simply who has more MLAs. It is whether those MLAs, the party organisation, the constitution and the cadre can legally be treated as parts of the same answer.
(The writer is a political observer. Views personal.)
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