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Supreme court denies stay of EC’s Sena order

The Supreme Court on Wednesday turned down a plea by Uddhav Thackeray to stay the Election Commission of India’s (ECI) decision last week to award Shiv Sena’s name and bow-and-arrow symbol to the faction led by Maharashtra chief minister Eknath Shinde, clearing the decks for the Shinde-led group to take Over party’s offices, other properties and bank accounts.

A bench led by Chief Justice of India (CJI) Dhananjaya Y. Chandrachud stated that it cannot halt the Election Commission of India’s (ECI) decision at this time or prevent the Shinde faction from claiming the party’s name or properties after they prevailed before the election body, even as the court accepted Thackeray’s appeal against the ECI order and served Shinde and the Commission with notices.

The bench, which also comprised justices PS Narasimha and JB Pardiwala, however, granted liberty to the Uddhav faction to use the name Shiv Sena (Uddhav Balasaheb Thackeray) and the flaming torch symbol for the ongoing bye-elections in Chinchwad and Kasba Peth, noting that ECI had also granted the same relief in its decision dated February 17.

The court also received an undertaking from Shinde’s senior counsel Neeraj Kishan Kaul that the Maharashtra chief minister will not press for the disqualification of any legislator from the Uddhav faction until the bench reaches a final decision on the appeal against the ECI’s decision. However, the court declined to extend the scope of its order to prohibit the Shinde faction from claiming properties and bank accounts as the legitimate Shiv Sena.

“This (ECI) order does not contain anything regarding bank accounts or properties. The ECI determined the symbol order. Something that is a component of the order that we can absolutely consider. This is not included in the order. ECI order is confined to the assignment of the symbol. Now they have succeeded before the EC. Without hearing them, we cannot pass an order that has the effect of suspending it. We are entertaining the SLP. We can’t stay the order at this moment. The bench informed senior counsel Kapil Sibal, Abhishek Manu Singhvi, and Devadatt Kamat, who represented the Uddhav side, that they had prevailed before the ECI.

Sibal begged for permission to discuss the topic if the Shinde camp took further action. The bench, however, responded: “ECI order is confined to a sign. Any additional action is unrelated to the ECI order. Thus, such actions must be contested in other suitable ways. Only this SLP (special leave petition) is being considered.”

The court subsequently granted Shinde and ECI two weeks to file their responses to Uddhav Thackeray’s appeal against the Commission’s February 17 order, and scheduled a hearing three weeks later.

Tuesday, CJI Y Chandrachud granted Thackeray’s appeal for an immediate hearing due to the irreparable repercussions the ECI’s ruling may have on the party’s properties and finances.

Thackeray on Monday sought the Supreme Court to dispute the ECI order as CM Shinde’s camp took over Shiv Sena’s office in the state legislative assembly.

In his petition, Thackeray said that ECI failed to arbitrate the disagreement between the two sides impartially. He asserted that the ECI order dealt with problems directly related to a group of petitions being heard by a Supreme Court constitution bench. In June 2022, Shinde was sworn in as the new chief minister of Maharashtra, following the resignation of Uddhav Thackeray. Separately, the constitution bench is adjudicating a slew of legal challenges resulting from Thackeray’s departure and Shinde’s appointment.

Also read: Eknath Shinde’s team has been assigned the Shiv Sena’s parliamentary office.

Wednesday, when arguing for the petition, Sibal objected that the ECI’s decision was based on the strength of the House’s legislative majority, which, he said, is one of the primary contentions being discussed separately before a constitution bench.

“The symbol was assigned based solely on the numerical strength of the assembly.” They have forty (MLAs). They are given the sign in this manner. And the constitutionality of the same majority is the issue before the Constitutional Court,” Sibal noted.

Singhvi, who was also representing the Uddhav faction, stated that members of the faction could face disqualification proceedings if they do not comply with the whip or notification issued by the Shinde group, which is now recognised as the legitimate Shiv Sena.

At this juncture, the bench asked senior counsel Kaul, Maninder Singh, and Mahesh Jethmalani, representing the Shinde group, if they could make an undertaking not to rush the matter till the court reaches a final decision. All of the attorneys concurred that the Shinde faction will not take any move to expedite the case until the top court rules on Thackeray’s appeal.

Meanwhile, Kaul filed preliminary objections to the appeal, alleging that it was not initially viable before the Supreme Court. He stated that the Uddhav side went to the Delhi high court twice against the Election Commission’s previous orders and hence, they cannot be allowed now to leapfrog a forum. Kaul noted that this point would also be raised in the counter-affidavit that will be filed in response to the court’s notice regarding Uddhav’s petition.

The Election Commission of India (ECI) ruled on Friday that Shinde’s faction will inherit the original party’s name and symbol, ending an eight-month feud between the two leaders over control of the regional party that suffered a vertical split last year when Shinde and 39 other legislators left the Thackeray-led party and joined the BJP to form the government.

ECI followed the procedure outlined in a 1971 Supreme Court decision, which stipulates that such cases must be decided using a triple test. ECI determined that the first two benchmarks produced inconclusive results.

The first criteria – aims of the party constitution — was declared unsuitable because the 2018 constitution of the Shiv Sena was determined to be undemocratic and centralised power in the hands of a few.

The second criteria, that of the majority in the party’s organisational body, was likewise disregarded because neither side gave reliable information on the composition of internal bodies, and no conclusive or adequate results could be determined.

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.

This was contested by Thackeray in his plea. He stated that the Sena constitution recognised the Pratinidhi Sabha as the supreme representative body of the party, and that 160 of the 200 members of the Pratinidhi Sabha supported his candidature. “The Election Commission has failed to discharge its duties as a neutral arbitrator of disputes under section 15 of the Election Symbols (Reservation and Allotment) Order, 1968, and has acted in a manner that undermines its constitutional status,” stated the appeal filed by advocate Amit Anand Tiwari.

Monday afternoon, Thackeray also targeted the Bharatiya Janata Party (BJP), Shinde’s ally in the present Maharashtra government, and stated that he had received calls from political leaders from around the nation after the EC’s verdict was revealed last week. “I have had everything taken from me. The name and emblem of our party have been stolen, but Thackeray’s name cannot be,” he stated at the Shiv Sena Bhavan in Dadar, Mumbai.

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