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By:

Abhijit Joshi

31 August 2024 at 3:39:24 pm

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. AI generated image 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...

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. AI generated image 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.)

Encroachment Politics

Correspondent
Jan 8
3 min read
Delhi
Delhi

An anti-encroachment drive should ideally be a modest municipal exercise. Instead, the one near Delhi’s Ramlila Maidan has become another case study in how routine governance is repeatedly converted into controversy. Acting on a Delhi High Court order, the Municipal Corporation of Delhi began removing unauthorised structures adjoining the Syed Faiz Elahi mosque and a nearby graveyard at Turkman Gate. Following frenzied speculation that the mosque was about to be demolished, an irate mob which gathered within hours pelted stones with such fury that several police personnel were injured in the melee.


In November, the High Court had directed the MCD and the Public Works Department to clear nearly 39,000 sq ft of encroachments at Ramlila Ground. Notices were issued in December. The civic body demarcated the land, stating that the mosque itself, occupying 0.195 acres, lay outside the proposed action, while adjoining structures did not.


A pattern, evident in the Turkman demolition drive is that the moment a surveyor’s tape or a bulldozer appears anywhere near a mosque, a predictable escalation follows. Recent years have witnessed the hysteria at Sambhal to other pockets of Uttar Pradesh, Madhya Pradesh and Rajasthan, where even preliminary surveys have repeatedly been met with violence.


The Delhi Police’s search for a local YouTuber, Salman, accused of using social media to mobilise residents during the Turkman Gate violence, adds a revealing layer to the episode.


The episode was clearly not just misinformation spreading organically but amplification with sinister intent. The rise of such hyperlocal ‘influencers’ who livestream civic action as communal threat raises an obvious question: who sustains them? How is it that what begins as a municipal notice decreed by the court gets rapidly reframed online as “Muslims under attack” - a narrative that travels effortlessly from fringe channels to mainstream commentary?


Equally telling is the reflex of a section of left-liberal opinion that reads routine civic enforcement through a permanent lens of minority peril. For such people, court orders are stripped of all legal context and recast as ‘cultural aggression.’


Leaders from the Samajwadi Party were quick to describe the Turkman Gate violence as an “action–reaction,” arguing that rumours made such an outcome inevitable. This formulation is revealing as it conveniently shifts responsibility away from those who threw stones and towards an abstract sense of hurt, as though misinformation were a mitigating circumstance. It also reflects a broader political habit of part of certain Opposition parties who have thrived on vote-bank and identity politics which is to treat any administrative action involving minority neighbourhoods, however legal, as inherently provocative.


Agreed that the Turkman Gate still carries memories of the Emergency-era demolitions of the 1970s, when coercive clearances left deep scars. One can contend that that past may explain local anxiety. However, that has no connection with the current episode where the bulldozers had come to raze patently illegal structures nor does it excuse political leaders who trade in insinuation instead of reassurance. In fact, reports showed that the bulldozers exposed more than illegal structures. A number of local street vendors, who spoke out after the Turkman Gate action, revealed how money was extorted at the dargah even from poor and helpless people for marriages and rituals.


Parties such as the Congress and the Samajwadi Party have long positioned themselves as guardians of minority interests. In practice, that guardianship, too often, has taken the form of mobilising fear. By hinting that routine enforcement is a ‘communal’ act, they turn legal disputes into identity conflicts.


What truly corrodes minority interests is not the bulldozer but the politics that treats Muslims as a permanent emergency who are too volatile for normal governance and too aggrieved for civic rules. By validating the stone-pelting as a ‘justified’ reaction, such parties infantilise the very voters they claim to protect, reducing them to a mob to be mobilised rather than citizens to be represented.


Urban India has an encroachment problem that cuts across communities and classes. Addressing it will be contentious. The choice is between managing that contention through law and administration, or inflaming it through rumour and political opportunism. The events at Ramlila Maidan suggest that too many still prefer the latter. 


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