SC asks EC if it considered denying Shiv Sena symbol to both Shinde, Thackeray factions

The Supreme Court on Thursday asked whether the Election Commission had considered denying the reserved bow-and-arrow symbol to both the Eknath Shinde and Uddhav Thackeray factions of the Shiv Sena and asking them to contest elections on separate symbols.

A bench headed by Chief Justice Surya Kant and comprising Justices Joymalya Bagchi and V Mohana was hearing pleas challenging the EC's decision to recognise the Shinde-led faction as the "real" Shiv Sena and allot it the party's bow-and-arrow symbol.

Justice Bagchi said the court could examine whether the EC had properly considered relevant factors and possible outcomes, while noting that judicial review did not permit it to substitute its own discretion for that of the poll panel.

The question came during submissions by senior advocate Neeraj Kishan Kaul, appearing for the Shinde faction, who defended the legislative majority test used by the EC to decide the dispute.

Justice Bagchi also questioned the relevance of the disqualification proceedings against Shinde-faction MLAs when the EC was deciding which faction was entitled to the party and its symbol.

Kaul argued that the pendency of disqualification proceedings could not, by itself, prevent the EC from deciding the dispute under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order.

He said 40 MLAs supporting Shinde had secured 76 per cent of the votes polled in favour of the 55 winning Shiv Sena MLAs in the 2019 Maharashtra Assembly elections, while the 15 MLAs backing Thackeray accounted for 23.5 per cent.

Citing the 2019 Lok Sabha elections, Kaul said the 13 MPs supporting Shinde had secured 73 per cent of the votes polled in favour of the party's 18 elected MPs, compared with 27 per cent for those supporting Thackeray.

Relying on the Constitution Bench judgment in Subhash Desai v Principal Secretary, Governor of Maharashtra, Kaul said the EC's decision under the Symbols Order need not necessarily be consistent with the Speaker's decision under the Tenth Schedule, as the two authorities perform different functions.

He also cited the Supreme Court's earlier judgment in Sadiq Ali vs Election Commission of India to contend that legislative strength remained a valid consideration in deciding party-symbol disputes.

Kaul cautioned that disregarding legislative strength whenever disqualification proceedings were pending could encourage frivolous petitions aimed at preventing the EC from assessing the support enjoyed by elected representatives.

The hearing will resume on September 22.

The Thackeray-led faction has challenged the EC's recognition of the Shinde faction as the original Shiv Sena and its allotment of the party's name and bow-and-arrow symbol. It has also challenged the Maharashtra Speaker's decision not to disqualify MLAs belonging to the Shinde camp.

(With inputs from PTI)