11 August,2026 08:16 PM IST | Mumbai | mid-day online correspondent
The Shiv Sena split into two factions in 2022, with one group led by Uddhav Thackeray (left) and the other by Eknath Shinde. FILE PIC
The Supreme Court on Tuesday heard petitions challenging the Maharashtra Assembly Speaker's decision not to disqualify legislators from the Eknath Shinde-led faction of the Shiv Sena under the Tenth Schedule of the Constitution, news agency ANI reported.
The Uddhav Thackeray-led faction argued that a split in the legislative wing of a political party cannot, by itself, be treated as a split in the political party.
Senior advocate Kapil Sibal, appearing for Shiv Sena (Uddhav Balasaheb Thackeray), submitted that the Election Commission of India (ECI) could exercise jurisdiction under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, only when there was a split in the political party resulting in two rival groups.
Paragraph 15 empowers the ECI to decide disputes when rival groups or factions of a recognised political party claim its name and election symbol. The Commission's decision is binding on all rival sections.
Sibal argued that a separate meeting of the legislative party could not constitute such a split.
"The Election Commission says that the indicator of the emergence of a split in Shiv Sena was the holding of a separate meeting of the legislative party. Holding of a separate meeting of the legislative party can never amount to a split in the party," Sibal submitted.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was also hearing a separate petition challenging the ECI's decision recognising the Shinde faction as the official Shiv Sena.
Appearing for the Uddhav Thackeray faction, Sibal argued that the statutory framework distinguished between a political party and its legislative wing.
Referring to Section 29A of the Representation of the People Act and the Election Symbols Order, Sibal submitted that the requirement of a split had to be satisfied at the level of the original political party.
Sibal also challenged the ECI's reliance on the Shiv Sena's 2018 constitution while simultaneously accepting the Shinde faction's contention that the constitution was undemocratic.
He submitted that this was an opportunistic position, as the Shinde faction had itself obtained benefits under the 2018 Constitution before questioning its validity.
"This was the first time they (Shinde group) took the position that the 2018 Constitution was undemocratic. If that Constitution was undemocratic, then every benefit they received under it was equally undemocratic. Their election to the legislature was undemocratic. Their appointment as Ministers was undemocratic. It was opportunistic to do so," Sibal said.
According to Sibal, the ECI could not use proceedings under Paragraph 15 to determine whether the party constitution was democratic.
"ECI is only a tribunal. It can't decide the democratic or undemocratic nature of the constitution," he said.
Sibal submitted that even if the party constitution were considered undemocratic, the consequence could only be action concerning the party's registration and not the transfer of its electoral symbol to a faction that was itself a product of the same organisational structure.
"If I assume my party constitution was undemocratic, what is the consequence? It is de-registration. There is no other power. The other faction is a creature of the same constitution. How does the symbol go to him?" he asked.
Sibal further argued that the ECI guidelines on organisational democracy, which were relied upon against the Thackeray faction, were framed for the registration of political parties and could not be applied retrospectively to parties that had already been registered before the guidelines came into force.
He submitted that the Shiv Sena had never been issued a notice seeking its de-registration on the ground that its constitution did not comply with the guidelines.
Sibal also invoked the fundamental right to form associations under Article 19(1)(c) of the Constitution, arguing that a political party, as a voluntary association, is entitled to function according to its own constitution and rules.
Referring to decisions concerning cooperative societies and other associations, he submitted that once an association is constituted and adopts its own rules, it is entitled to function in accordance with those rules.
A person who does not wish to remain part of an association, he said, is free to leave. Sibal made the submission in the context of the challenge concerning the internal structure and functioning of the Shiv Sena.
"I am only flagging this issue," Sibal said, cautioning against a situation where an association is declared "autocratic" and its constitution is consequently held impermissible without notice or due process.
Justice Bagchi observed that the expression "morality" was also flexible and could involve the concept of constitutional morality.
"When we speak of morality, the question may also arise whether it is constitutional morality. One can even be benevolently autocratic," Justice Bagchi remarked.
The bench will continue hearing the arguments on Wednesday.
Shiv Sena split into Uddhav Thackeray, Eknath Shinde factions in 2022
The Shiv Sena split into two factions in 2022, with one group led by Uddhav Thackeray and the other by Eknath Shinde.
Following the split, Shinde approached the ECI seeking recognition as the real Shiv Sena and claiming the party's name and its iconic bow-and-arrow symbol.
While deciding the dispute, the ECI primarily relied on the numerical strength of the party's legislators instead of giving greater weight to the organisational wing.
(With ANI inputs)
