NEW DELHI: Former Maharashtra CM Uddhav Thackeray suffered a big setback as the Supreme Court on Thursday refused to stay the Election Commission of India's (ECI) order of granting Shiv Sena’s name and 'Bow and Arrow' symbol to Maharashtra CM Eknath Shinde's faction.
A bench of CJI DY Chandrachud, Justices PS Narasimha and JB Pardiwala also issued a notice in Uddhav’s plea and directed the current Maharashtra CM and ECI to file its counter within two weeks.
“Counter affidavit to be filed within two weeks. Pending further orders of this court, the protection which has been granted in para 133(4) of the ECIs order shall continue to remain in operation,” the court said in its order.
The bench also refused to accede to Uddhav Thackeray’s request of restraining the Shinde faction from taking over the party’s office and bank account in Parliament and state assembly. Remarking that there is a contractual relationship between the parties, the bench said that the parties can pursue alternate remedies.
“Any further action is not based on EC order. Then you have to pursue other remedies of law. We are entertaining the SLP but we can’t stay the order. It’s a contractual relationship within the party,” the CJI remarked.
Furthermore, the bench also allowed the Thackeray faction to continue using the 'Flaming Torch' symbol and Shive Sena's (Uddhav Balasaheb Thackeray) name. ECI while allotting the party’s name to the Shinde faction also allowed the Uddhav faction to retain the new name and the symbol till the completion of bye-elections for 205- Chinchwad and 215- Kasba Peth of Maharashtra Legislative Assembly.
Senior Advocate Kapil Sibal appeared for the Uddhav faction contended that although ECI's order was based on a majority test in the legislative wing Uddhav faction still holds the majority in Rajya Sabha.
“They had 40 and that’s how the symbol was given to them. The numerical count includes all MLAs and MLCs. We have the majority in Rajya Sabha,” Sibal said.
For the Shinde faction, Senior Advocate Neeraj Kishan Kaul contended that it was never its contention that the legislative party is not an integral part of the political party. “Till a disqualification is pending, MLA or MP has every right to vote and participate in the house. Same member of legislature party is also a member of a political party,” Kaul further added.
Terming ECI’s order as tainted and ex-facie erroneous, Uddhav’s plea while seeking a stay stated that the apex poll body has acted in a manner that undermines its constitutional status. It was also contended that ECI erred in holding that there is a split in the political party and has failed to appreciate that the Uddhav faction enjoys overwhelming support in the rank and party’s file.
“The test of legislative majority adopted by the ECI could not have been applied at all in view of the fact that the disqualification proceedings were pending against the legislators supporting the Respondent. If in the disqualification proceedings, the legislators are held to be disqualified, there is no question of these legislators then forming a majority. Thus, the basis of the impugned order itself is constitutionally suspect,” the plea stated.
It was also stated in the plea that the edifice of the ECI's order was based on the Shinde faction’s purported legislative majority which was an issue to be determined by the Constitution bench.
Since ECI on Friday while allowing the Shinde faction to use the party’s name & symbol “bow & arrow” had relied on the test of majority in the legislative assembly, the plea stated that the legislative majority alone, in this case, could not be the basis for passing its order. The apex poll body had noted that the outcome of the majority in the legislative wing reflected clearly qualitative superiority in Shinde’s favour.