Supreme Court heard Uddhav’s argument that the EC failed to function as a neutral arbitrator.
Election Commission did not act as a “neutral arbiter” when it allotted the Shiv Sena party symbol to the faction led by Maharashtra chief minister Eknath Shinde, Uddhav Thackeray argued in an appeal filed with the Supreme Court on Monday. Thackeray also pointed out alleged errors in the poll panel’s order on the grounds that some of the issues it ruled on were still pending before the Constitution bench of the apex court.
Thackeray challenged the EC’s 77-page order on Monday, arguing that the issue of allotting the party symbol was “intertwined” and directly related to those pending before the Constitution bench, and that his appeal should therefore be heard along with a number of pending cases that will be heard on Tuesday by the top court.
“The entire architecture of the assailed order is predicated on Shinde’s alleged legislative majority, which is a question to be decided by this court’s Constitution bench,” the appeal stated.
“The criteria of legislative majority used by EC could not have been applied given the current disqualification proceedings against the legislators backing the respondent. If the legislators are found to be disqualified during the disqualification proceedings, it is impossible for them to create a majority. “Thus, the basis of the challenged decree is constitutionally dubious,” the court added.
EC adhered to a triple test while The first test – aims of the party constitution — was declared inappropriate because the Shiv Sena’s 2018 constitution was deemed undemocratic. The second criteria, that of the majority in the party’s organisational body, was likewise disregarded because neither side presented correct information regarding internal bodies.
Hence, ECI relied on the third criterion, the legislative majority test. In this instance, the polling body discovered that forty of the legislative assembly’s fifty-five members supported the Shinde faction, which corresponded to 76% of the total votes garnered by the united party in the 2019 assembly elections. In addition, thirteen of the party’s eighteen Lok Sabha members supported Shinde, representing 73% of the total votes cast in the 2019 general elections.
The EC’s decision came a week after the Supreme Court agreed to examine more thoroughly a 2016 ruling at the heart of the dispute over the disqualification of several Shinde camp MLAs, which was a pivotal turning point in the Shiv Sena conflict.
Thackeray contended in his appeal that the Shiv Sena constitution recognised the Pratinidhi Sabha as the supreme representative body of the party, and that he had the support of 160 of the 200 members of the body. The Election Commission disregarded the party’s constitution, deeming it “undemocratic,” and instead relied on the backing of 40 out of 67 members of the Maharashtra legislative assembly and 13 out of 22 MPs from both chambers. This, according to Thackeray, was a violation.
“The Election Commission has failed to discharge its duties as a neutral arbitrator of disputes under paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 and has acted in a manner undermining its constitutional status,” stated the appeal filed by senior advocate Devadatt Kamat and filed by advocate Amit Anand Tiwari.
On Monday, senior counsel Abhishek Manu Singhvi requested an urgent hearing before a bench presided by by Chief Justice of India (CJI) Dhananjaya Y Chandrachud. Although the Court was unwilling to hear any out-of-turn mentions, the bench instructed Singhvi to mention the matter on Tuesday.
In its order, EC determined that proceedings under the Symbols Order and disqualification of a lawmaker under the Tenth Schedule of the Constitution work in separate areas, and that disqualification is not based on cessation of membership in the political party in question. In opposition, the appeal stated, “There is an intimate, direct connection and bearing between procedures under the Tenth Schedule and a determination of whether a member ceases to be a member of the political party as a result of his actions.”
In addition, the Election Commission was criticised for holding a break in the “political party” although all arguments and petitions were limited to the topic of a separation in the Shiv Sena’s legislative side.
“ECI has failed to recognise that the petitioner (Thackeray) has a majority in the Legislative Council (12 of 12 seats) and Rajya Sabha (3 of 3 seats),” stated the appeal. In a scenario where there is a debate within the parliamentary majority, Thackeray contended that the legislative majority alone is not a reliable indicator of who holds the majority for the purposes of resolving a petition under the Symbols Ordinance.
Shinde refuted Thackeray’s claims and stated, “Decisions in a democracy are based on the law and the Constitution. “It has become routine for some individuals to applaud a decision if it is in their favour and criticise it if it is not,” the chief minister stated.
