Setback for Uddhav as SC refuses to stay EC order on Sena symbol

In a jolt to the Uddhav Thackeray camp, the Supreme Court on Wednesday refused to stay the Election Commission order recognising the Maharashtra Chief Minister Eknath Shinde-led bloc as the real Shiv Sena and allotting the party's original 'bow and arrow' poll symbol to it.

The top court, while issuing notice to the Shinde group on the appeal against the poll panel's decision, permitted the Thackeray faction to use 'Shiv Sena (Uddhav Balasaheb Thackeray)' name and ’flaming torch' as its poll symbol in the state byelections scheduled for February 26.

”Issue notice... senior advocates N K Kaul, Mahesh Jethmalani and Maninder Singh (for Shinde) receive notice... Counter affidavit, if any, be filed within a period of two weeks. Pending further orders, the protection (on use of party name and flaming torch symbol) and which has been granted in paragraph 133 (IV) of the impugned order of the Election Commission dated Feb 17, 2023 shall continue to remain in operation,” ordered the bench headed by Chief Justice D Y Chandrachud.

It, however, did not grant any relief to the Thackeray camp despite its vehement submissions that the assets of the party and its bank accounts be saved from being taken over by the Shinde faction.

Senior advocate Kapil Sibal, assisted by lawyer Amit Anand Tiwari, urged the court on Thackeray's behalf that a status quo order on party properties and bank accounts be granted as the Shinde faction is taking over everything on the ground that now they are the real Shiv Sena.

Does the (EC) order contain any direction with regard to bank accounts and properties, asked the bench, which also comprised Justices P S Narasimha and J B Pardiwala.

”No, no,” replied Sibal, adding, “but, they will say that they are the real party and will take over everything. Rather, they are doing that.”

”Mr Sibal, if something is part of the Election Commission order we can certainly look at. This does not form... The EC order is confined to the allotment of symbols. Now for us to go beyond is not possible ... Equally, now they have succeeded after hearing before the Election Commission, we cannot pass an order which has the effect of staying the order without hearing them,” the bench said.

There was some positive outcome for the Thackeray faction  as senior advocate N K Kaul, appearing for the Shinde bloc, assured the bench it will not take steps like issuing whip or initiation of disqualification proceedings against lawmakers -- MLAs, MLCs and MPs -- of the Thackeray faction for the time being.

The assurance came after senior advocate A M Singhvi, also appearing for Thackeray, raised apprehension, saying ”Tomorrow, if they issue a whip or a letter and if we do not do it then we will be disqualified. Now they are the party. I have no protection. Your lordships should give us the status quo at least.”

This led the bench to ask: ”If we take this (petition for hearing) after two weeks, are you in the process of issuing a whip or disqualifying them?”

”No, no,” responded Kaul.

The bench, while refusing to grant the interim relief of  status quo on properties and bank accounts, said though it was entertaining the plea of Thackeray it cannot ”stay an order at this stage as they have succeeded before the EC.”

Sibal also sought liberty to move the court again if the Shinde faction takes any action to precipitate the situation by taking over properties.

”That is independent of the EC order. Ultimately that is a contractual relationship within a political party. Any further action is not based on the Election Commission order,” the bench said, adding that the Thackeray group will have to ”exhaust other remedy”.

At the outset, the Shinde group raised preliminary objections on the maintainability of the plea, saying the petition against the EC decision should have been filed in the high court.

Sibal said the basis of the poll panel's order was erroneous as the majority in the legislative wing of the party was considered and the fact related to the organisational wing of the party was not taken note of.

”The poll panel said ’test of majority in the organisational wing is not leading us to a satisfactory outcome'. I have grave objections to this,” Sibal said, adding that since the Shinde camp has 40 MLAs the symbol was given to them.

”Within the Rajya Sabha we have a majority, but because of these 40, they got the symbol. That's the question before this court. What will the high court do,” he said.

The poll panel said that even for recognition of a political party, the number of votes, number of lawmakers are taken into account, and as there was no democratic set-up in the organisation, the majority in the legislative wing was considered, Kaul said countering Sibal.

The Sena chief elects members of the electoral college and they, in turn, elect the party ’pramukh', he said, adding this led the EC to take note of the majority in the legislative wing of the party while deciding which group is the real Sena.

”Political party and legislative party are connected and integral part of each other,” Kaul argued, adding that the constitution of the party is dictatorial where any form of dissent was not possible.

 “Party ’pramukh' is the all-in-all, final arbiter of any dissent. People are liable to be disqualified, thrown from the party. This was never disclosed to the EC,” he said.

The top court had on Tuesday agreed to hear the plea of the Thackeray camp against the Election Commission's decision.

The poll panel had on Friday recognised the Eknath Shinde-faction as the real Shiv Sena and ordered allotment of the bow and arrow election symbol of the undivided party founded by the late Balasaheb Thackeray to it.

In a 78-page order on the protracted battle for control of the organisation, the Commission allowed the Uddhav Thackeray faction to keep the 'flaming torch' poll symbol allotted to it till the completion of the assembly by-polls in the state.

The Commission said the MLAs backing Shinde got nearly 76 per cent of votes polled in favour of the 55 winning Shiv Sena candidates in the 2019 Maharashtra assembly elections.

The MLAs in the Uddhav Thackeray camp got 23.5 per cent of the votes polled in favour of the winning Shiv Sena candidates, the three-member Commission said.