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Supreme Court urgently lists Uddhav Thackeray’s plea to stay EC order on Shiv Sena for February 22

The Supreme Court on February 21 listed former Maharashtra Chief Minister Uddhav Thackeray’s petition challenging the decision of the Election Commission of India (ECI) to allot party name ‘Shiv Sena’ and symbol ‘bow and arrow’ to the Eknath Shinde faction for hearing at 3.30 p.m. on February 22.

In an oral mentioning before a Bench led by Chief Justice of India (CJI) D.Y. Chandrachud, senior advocate Kapil Sibal, appearing for Thackeray, sought a stay of the Election Commission order of February 17.

Sibal said the rival faction was taking over the “bank accounts and properties”. Senior advocate A.M. Singhvi said the turn of events following the EC order is leading to a “piquant” situation.

Shinde’s counsel, senior advocate Neeraj Kishan Kaul, appearing on caveat, said Thackeray had already raised these issues twice in the High Court. Chief Justice Chandrachud said the case would be listed on February 22 after the Constitution Bench hearing in the Shinde-Thackeray dispute concerning disqualification of the then “rebel” legislators who took over the government in Maharashtra with support from the BJP after Thackeray resigned as Chief Minister just ahead of a floor test.

“We will post for tomorrow evening at 3.30 p.m. after the Constitution Bench hearing. We need some time to read the petition,” Chief Justice Chandrachud told Sibal and Singhvi.

In his appeal, Thackeray, also represented by advocate Amit Anand Tiwari, said the Election Commission (EC) was “unfair”, “biased”. It had failed in its duties as a “neutral arbiter of disputes” under the Election Symbols (Reservation and Allotment) Order of 1968.

The EC order was based on proceedings under Paragraph 15 of the 1968 Order, which empowered it to identify the “recognised political party” from among rival factions or splinter groups.

But Thackeray said the EC’s decision amounted to an interference with the party’s 2018 Constitution and results of the intra-party polls, following which Thackeray was made leader. The EC had refused to recognise the party Constitution as “sacrosanct”, even termed it an instrument of “fiefdom” and allowed Shinde to take over the leadership of the party. Thus, a constitutional authority has undermined the very principles of inner-party democracy, Thackeray argued.

“The order of the ECI allows Shinde to take over the leadership of the party without duly contesting intra-party elections in accordance with the Party Constitution, and is against the principles of inner-party democracy,” the petition said.

It said the EC ignored the fact that Thackeray “enjoyed the overwhelming support in the rank and file of the party”. He had the support of 160 members out of approximately 200-odd members in the Pratinidhi Sabha, which is the apex representative body representing the wishes of the primary members and other stakeholders of the party. In fact, Thackeray enjoyed a majority in the Legislative Council (12 out of 12) and the Rajya Sabha (3 out of 3).

More damaging, Thackeray said, was the effect of the EC order in recognising and validating a “split” in a political party. This would only encourage legislators in the future to split from the original party without the fear of having to face disqualification proceedings under the Tenth Schedule.

A “split” from the original political party without a subsequent merger with another party or formation of a new faction is no longer a defence against charges of defection. The Constitution (Ninety-first Amendment) Act, 2003 had deleted the provision of “split” in Paragraph 3 of the Tenth Schedule. The Thackeray faction argued that the Shinde camp’s refusal to comply with the party whip amounted to a “split” from the original Shiv Sena party. As a result, they had ceased to be party members and were liable to be disqualified as legislators for defection.

The petition challenged EC’s finding that there was a “split” not only in the legislative wing of Shiv Sena but also in the political party. No such averments were made in the EC proceedings.

The Thackeray camp also challenged the EC’s conclusion that the Shinde faction had the majority of legislators with it. They argued that many of these legislators constituting the “majority” were already facing disqualification proceedings. “There is a possibility of the alleged members losing their right of membership. The legislative majority alone is not a safe guide to determine as to who holds the majority for the purposes of adjudicating a petition under Paragraph 15 of the Symbols Order,” the petition said.