Supreme Court Questions Election Commission's Shiv Sena Symbol Decision

The Supreme Court on Thursday pressed the Election Commission of India on its 2023 decision to hand the Shiv Sena's bow-and-arrow symbol to the Eknath Shinde faction, with the bench asking why the poll body did not simply deny the contested symbol to both rival camps and let them build support independently.

The Bench's Central Question

A three-judge bench comprising Chief Justice of India Surya Kant along with Justices Joymalya Bagchi and V Mohana is hearing a batch of petitions arising from the 2022 split in the undivided Shiv Sena, including a challenge filed by the Uddhav Thackeray faction against the Commission's decision. Justice Bagchi told the court that if none of the available legal tests clearly established which faction represented the real party, the Commission always had the option of giving neither side an advantage over the founder's legacy and name, and instead letting each group earn its own standing at the ballot box. He also drew a distinction between disqualification proceedings under the Tenth Schedule of the Constitution, which concern individual lawmakers who defect, and a dispute over a political party's reserved symbol, which concerns the identity of the organisation itself. The bench further asked whether it was appropriate to treat legislative headcount as decisive when disqualification cases against some of the very legislators being counted were still pending elsewhere in the courts.

Arguments From Both Sides

Senior advocate Neeraj Kishan Kaul, representing the Shinde faction, defended the Commission's approach, arguing that it had examined the Shiv Sena's constitution, organisational structure and legislative support before concluding that legislative strength was the only workable test available in a fast-moving political crisis. He argued that the party's formal organisational wing was made up largely of nominated office-bearers and therefore did not reliably reflect the views of the broader party cadre, making it impractical to measure support any other way. He also contended that even if a sitting legislator is eventually disqualified, that does not retroactively cancel the votes that elected them or the party's recorded vote share. Senior advocate Kapil Sibal, arguing earlier for the Thackeray camp, has maintained that a temporary legislative majority cannot be allowed to hand one faction control over a party's identity, name and symbol built over decades.

Background To The Dispute

The Shiv Sena split in 2022 after Eknath Shinde led a large group of legislators away from Uddhav Thackeray's leadership. The Shinde faction subsequently petitioned the Election Commission, which ruled in February 2023 that it represented the real Shiv Sena based on the backing of 40 of the party's MLAs against 15 for the Thackeray camp, and 13 of 18 Lok Sabha MPs, and accordingly awarded it the bow-and-arrow symbol. The Uddhav faction has contested that finding ever since. With Thursday's hearing, the court continued working through the competing arguments, though it did not indicate when it expects to rule on the underlying dispute.

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