Apex court asks whether voters' party preference unsettles legislative-majority test in Shiv Sena dispute

The Supreme Court on Thursday questioned the use of legislative majority as a test to decide the Shiv Sena name and symbol dispute, Bar & Bench reported. A bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana made the observations while hearing the matter, according to the legal news outlet, which said Justice Bagchi asked whether the votes of a legislator who changes allegiance after being elected can still be treated as support for that legislator and a new party, noting that "today, the voter actually votes for a party, not for the representative." ^{[1] [1] [1]}

Justice Bagchi framed the issue as one within judicial review of the Election Commission of India's decision to give the Shiv Sena name and symbol to the Eknath Shinde-led faction, Bar & Bench reported. He clarified the court would not substitute its discretion for the poll body's, but could examine how that discretion was exercised and whether relevant considerations and possible outcomes were explored, saying he had never said the decision would be wrong on that account. Counsel for the Shinde faction, Senior Advocate Neeraj Kishan Kaul, defended the commission's reliance on legislative strength, arguing it did not merely count MLAs. ^{[1] [1]}

Bar & Bench reported that Kaul cited vote shares and the strength of rival factions in both Parliament and the Maharashtra Assembly, saying 40 MLAs backing the Shinde faction had secured about 76 per cent of votes polled for Shiv Sena's 55 winning MLAs in the 2019 Assembly elections, and that 13 supporting MPs had garnered about 73 per cent of votes polled for the party's 18 elected MPs. Kaul also argued, per the report, that the Constitution Bench ruling in Subhash Desai did not prohibit the legislative-majority test merely because disqualification proceedings were pending, while Justice Bagchi said those proceedings could not simply be brushed aside as unrelated and noted the Subhash Desai judgment had not been delivered when the commission decided the symbol dispute. ^{[1] [1]}

The report said the judge also referred to a possible third option of continuing separate symbols for the rival factions rather than awarding the reserved symbol to either side, while clarifying that option was not the only one, and that the court's examination had ramifications beyond the present dispute. The hearing will continue next week, Bar & Bench reported, recalling that Shiv Sena split into two factions in 2022, one led by Uddhav Thackeray and the other by Eknath Shinde, with the latter later petitioning the commission for the party name and the bow and arrow symbol. ^[1]

According to the report, the commission relied on the strength of the party's legislative wing rather than its organisational wing, explaining it had attempted the organisational test but could not reach a satisfactory conclusion because the latest party constitution was not on record, and that claims of numerical majority in the organisational wing by both factions were unsatisfactory. The commission found the Shinde faction had 40 MLAs against the Thackeray faction's 15, and that out of 18 Lok Sabha MPs, 13 supported the Shinde faction while five supported the Thackeray faction, the report said, ruling in favour of the Shinde faction. ^{[1] [1]}