The Supreme Court on Thursday questioned the amended constitution of the Shiv Sena, observing that it had evolved from a democratically structured organisation into "virtually a one-person structure", as it continued hearing the Uddhav Thackeray faction's challenge to the Election Commission's recognition of the Eknath Shinde-led group as the "real Shiv Sena".
A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana said the functioning of political parties must also be tested against democratic principles when constitutional institutions are expected to uphold democratic values.
“Originally, the party (Shiv Sena) Constitution was founded on democratic principles. Subsequently, it was amended and became virtually a one-person structure,” the bench observed.
Appearing for the Thackeray faction, senior advocate Kapil Sibal argued that the Election Commission had exceeded its jurisdiction by examining the validity of the party's constitution while deciding the symbol dispute.
“The real question is that this is not within the Election Commission's remit,” Sibal submitted.
The Chief Justice responded that the issue went beyond the Election Commission's powers.
“When we speak of democratic principles and institutions safeguarding democratic values, the question naturally arises whether a political party is itself expected to function democratically,” the CJI said.
While agreeing that political parties should function democratically, Sibal maintained that constitutional authorities and political parties cannot be held to the same standard.
“Constitutional institutions perform constitutional functions, whereas political parties perform political functions. The standard of institutional integrity is necessarily much higher when a constitutional authority exercises its powers,” he said, adding that political decisions could be corrected, unlike decisions of constitutional bodies.
Sibal argued that, at best, the Election Commission could have directed the party to amend its constitution instead of rejecting it.
"We know of several political parties that have not held organisational elections for years," he said.
“Has the (Election) Commission ever held that their constitutions are undemocratic and therefore refused to recognise them? That is precisely the reasoning by which it refused to rely upon the 2018 constitution here,” he added.
Justice Bagchi also questioned the Commission's approach, noting the contrast between its emphasis on constitutional morality and its decision in the case.
“It repeats Dr. Ambedkar's observations and also refers to the view that defection is a constitutional sin. Today, however, it appears to have become a badge of honour rather than a sin... Dr. Ambedkar had said that however good a Constitution may be, it is bound to turn out bad if those who are called upon to work it happen to be bad,” Justice Bagchi observed.
“This is exactly our case,” Sibal replied.
Launching a sharp attack on the Commission's methodology, Sibal said it had no legal authority to invalidate the Shiv Sena's 2018 constitution and instead relied on an older 1999 version to decide the dispute.
“The EC has no adjudicatory power to pronounce upon the validity of a party constitution,” he argued.
“Under Section 29A and its own guidelines, the Commission cannot hold a party constitution invalid. By assuming a jurisdiction it does not possess, the Commission decided this dispute on an impermissible basis,” he said.
Sibal contended that the Commission's decision effectively allowed a legislative faction to become the political party by giving primacy to legislative strength over organisational support. He told the court that while the Shinde faction enjoyed a majority among MLAs, the Thackeray faction retained overwhelming support within the party organisation, with around 19.4 lakh primary members compared with 4.48 lakh backing the Shinde camp.
“If the EC decides who the political party is before disqualification is settled, the horse has already bolted from the stable,” he said.
Referring to the expansion of the Shinde camp after the 2022 political crisis, Sibal added, “People in power are like a magnet. Power attracts people. If disqualification proceedings are allowed to linger, this expansion is the inevitable consequence.”
The Thackeray faction argued that the Commission's ruling reduced the political party to its legislative wing, creating a precedent where governments could be altered through defections rather than electoral mandate.
The hearing will continue on August 11.
(With inputs from PTI)