The Supreme Court on Tuesday questioned whether the Shiv Sena's reserved bow-and-arrow symbol could be allotted to members accused of committing the “constitutional sin” of defection, as it examined the Election Commission's decision to recognise the Eknath Shinde faction as the real Shiv Sena.
A bench headed by Chief Justice Surya Kant and comprising Justices Joymalya Bagchi and V Mohana raised the question while hearing arguments by senior advocate Neeraj Kishan Kaul, appearing for the Shinde faction.
Justice Bagchi asked whether the “sentiment of the symbol” should operate in favour of those accused of defection or those who had complained against the alleged constitutional violation.
“Will the sentiment of the symbol operate for persons who have committed the constitutional sin, or will it operate for the persons who complained of the constitutional sin?” he asked.
The bench was hearing a batch of pleas arising from the 2022 split in the Shiv Sena, including Uddhav Thackeray's challenge to the EC's decision to recognise the Shinde faction as the official Shiv Sena and allot it the bow-and-arrow symbol.
Kaul defended the EC's reliance on the legislative majority test, arguing that the test remained legally valid for determining which faction constituted the political party under the Election Symbols (Reservation and Allotment) Order.
He referred to several Supreme Court judgments, including the Constitution Bench ruling in the Subhash Desai case, and argued that the judgment did not bar the use of the legislative strength test.
The bench also questioned whether legislative strength could be treated as a “safe test” when disqualification proceedings were pending against the MLAs whose numbers formed the basis of the majority.
Kaul maintained that the symbol should go to the faction that establishes itself as the real political party. He said the legislative majority could be considered where the constitutional authority, after examining all relevant factors, found it appropriate.
Justice Bagchi also questioned whether an organisational test would necessarily reflect grassroots support when a party's constitution did not provide for a clearly democratic organisational structure.
The bench had earlier asked whether the EC had considered denying the reserved symbol to both factions and requiring them to contest elections on separate symbols.
Kaul said 40 MLAs supporting Shinde accounted for 76 per cent of the votes polled in favour of the 55 Shiv Sena MLAs elected in the 2019 Maharashtra Assembly polls. He also cited Lok Sabha figures, saying 13 Shinde-backed MPs accounted for 73 per cent of the votes polled in favour of the party's 18 elected MPs.
The hearing remained inconclusive and will continue on Wednesday.
(With inputs from PTI)