Can split in legislature party reflect in political party? Supreme Court asks in Shiv Sena symbol case

The Supreme Court on Wednesday examined whether a split in the legislature wing of a political party could subsequently percolate into its organisation and primary membership.

A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana made the observation while hearing the Uddhav Thackeray faction's challenge to the Election Commission of India (EC) decision recognising the Eknath Shinde-led faction as the "real Shiv Sena" and allotting it the bow and arrow symbol.

During arguments by Senior Advocate Kapil Sibal for the Thackeray faction, Justice Bagchi observed that while the existence of a split in the political party had to be examined, a fissure could originate in the legislature party and subsequently "percolate into the organisation and the primary membership".

Sibal argued that a split in the legislature party could not by itself amount to a split in the political party. He relied on the Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra and paragraph 15 of the Election Symbols (Reservation and Allotment) Order.

Justice Bagchi, however, observed,

"The Constitution Bench says that the proposed split cannot be restricted to a split in the legislature party. But it does not say that if a split begins in the legislature party and subsequently gets reflected in the organisation and the primary membership, it cannot be considered. It may be the epicentre of a larger split."

The judge also noted that political parties were not composed merely of office-bearers and that primary membership was an important part of the organisational structure.

The Bench consequently posed another question: whether the factual position for determining the existence of a split must be frozen on the date paragraph 15 is invoked, or whether the ECI can consider subsequent developments before finally deciding the symbol dispute.

Sibal accepted that a political dispute could evolve, but maintained that there must first be a prima facie split in the political party for the Commission to assume jurisdiction.

The CJI also observed that if the material demonstrated the existence of threshold jurisdiction, the issue might concern an erroneous exercise of jurisdiction rather than absence of jurisdiction altogether.

Sibal maintained that the crucial question was what material existed before the ECI on July 19, 2022 to establish a split in the political party.

Justice Bagchi remarked during the exchange that the Court could not forget that it was dealing with a "living democracy".

"Absolutely. I don't know how democratic it is, but we are certainly living in aspirational India," Sibal responded.

The hearing will continue on Thursday.

The Shiv Sena split into two factions in 2022, one led by Thackeray and the other by Shinde. Shinde then petitioned the ECI staking a claim to the 'Shiv Sena' name and the bow and arrow symbol. 

The ECI relied on the strength of the legislative wing of the party to arrive at its decision rather than on the test of its organisational wing. It explained that although it had attempted to apply the test of the organisational wing, it could not come to any satisfactory conclusion because the latest constitution of the party was not on record. The claims of numerical majority in the organisational wing of the party by both factions were not satisfactory, the ECI opined. Thus, it proceeded to rely on the test of who had the majority in the legislative wing.

The Shinde faction was noted to have 40 Members of Legislative Assembly (MLAs) as against the Thackeray faction's 15 MLAs. Likewise, in the Lok Sabha as well, out of 18 Members of Parliament (MPs), 13 MPs supported the Shinde faction, while only 5 supported the Thackeray faction, the ECI found.

Hence, it ruled in favour of the Shinde faction and allowed it to retain Shiv Sena name and the bow and arrow symbol.

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