Shiv Sena row: Uddhav faction challenges ECI's jurisdiction over party split dispute

The Supreme Court on Tuesday heard petitions challenging the Maharashtra Assembly Speakers decision not to disqualify legislators from the Eknath Shindeled faction of the Shiv Sena under the Tenth Schedule of the Constitution news agency ANI reportedThe Uddhav Thackerayled faction argued that a split in the legislative wing of a political party cannot by itself be treated as a split in the political partySenior 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 groupsParagraph 15 empowers the ECI to decide disputes when rival groups or factions of a recognised political party claim its name and election symbol The Commissions decision is binding on all rival sectionsSibal argued that a separate meeting of the legislative party could not constitute such a splitThe 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 submittedUddhav faction challenges ECIs recognition of Shindeled Shiv SenaA bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was also hearing a separate petition challenging the ECIs decision recognising the Shinde faction as the official Shiv SenaAppearing for the Uddhav Thackeray faction Sibal argued that the statutory framework distinguished between a political party and its legislative wingReferring 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 partySibal questions ECIs reliance on Shiv Senas 2018 constitutionSibal also challenged the ECIs reliance on the Shiv Senas 2018 constitution while simultaneously accepting the Shinde factions contention that the constitution was undemocraticHe submitted that this was an opportunistic position as the Shinde faction had itself obtained benefits under the 2018 Constitution before questioning its validityThis 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 saidAccording to Sibal the ECI could not use proceedings under Paragraph 15 to determine whether the party constitution was democraticECI is only a tribunal It cant decide the democratic or undemocratic nature of the constitution he saidSibal submitted that even if the party constitution were considered undemocratic the consequence could only be action concerning the partys registration and not the transfer of its electoral symbol to a faction that was itself a product of the same organisational structureIf I assume my party constitution was undemocratic what is the consequence It is deregistration There is no other power The other faction is a creature of the same constitution How does the symbol go to him he askedUddhav faction challenges ECI guidelines on organisational democracySibal 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 forceHe submitted that the Shiv Sena had never been issued a notice seeking its deregistration on the ground that its constitution did not comply with the guidelinesSibal also invoked the fundamental right to form associations under Article 191c of the Constitution arguing that a political party as a voluntary association is entitled to function according to its own constitution and rulesReferring 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 rulesA 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 SenaI 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 processlsquoOne can even be benevolently autocraticrsquo Justice Bagchi on moralityJustice Bagchi observed that the expression morality was also flexible and could involve the concept of constitutional moralityWhen we speak of morality the question may also arise whether it is constitutional morality One can even be benevolently autocratic Justice Bagchi remarkedThe bench will continue hearing the arguments on WednesdayShiv Sena split into Uddhav Thackeray Eknath Shinde factions in 2022The Shiv Sena split into two factions in 2022 with one group led by Uddhav Thackeray and the other by Eknath ShindeFollowing the split Shinde approached the ECI seeking recognition as the real Shiv Sena and claiming the partys name and its iconic bowandarrow symbolWhile deciding the dispute the ECI primarily relied on the numerical strength of the partys legislators instead of giving greater weight to the organisational wingWith ANI inputs