Shiv Sena dispute: Supreme Court asks whether political parties must function democratically

While hearing the Shiv Sena name and symbol dispute, the Supreme Court on Thursday questioned whether political parties, while championing democratic values, are themselves expected to function democratically.

A Bench of Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing petitions filed by the Uddhav Thackeray faction challenging the Election Commission's February 2023 decision recognising the Eknath Shinde-led faction as the real Shiv Sena and allotting it the party's name and the bow-and-arrow symbol.

During the hearing, CJI Kant referred to amendments made to the Shiv Sena constitution and observed:

"Originally, the party constitution was founded on democratic principles. Subsequently, it was amended and became virtually a one-person structure."

Appearing for the UBT faction, Senior Advocate Kapil Sibal responded that whether the party constitution was democratic was not an issue that the Election Commission was empowered to decide.

"We did not do that, My Lords. I have already demonstrated otherwise. But the real question is that this is not within the Election Commission's remit," he submitted.

The Chief Justice, however, said that the issue raised a broader constitutional question.

"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."

Sibal agreed that the point deserved consideration, but argued that constitutional authorities and political parties occupy different positions.

"I appreciate the point, My Lords. But there is a distinction. 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 submitted.

According to Sibal, the Election Commission could at best have required the party to amend its constitution, but could not disregard the 2018 constitution while deciding the symbol dispute.

"We know of several political parties that have not held organisational elections for years. Has the 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 argued.

The Bench also asked Sibal on the relevance of subsequent events in disqualification proceedings. Referring to the removal of Sunil Prabhu as Chief Whip and the appointment of Bharat Gogawale, Sibal argued that these were further acts of voluntarily giving up membership.

Justice Bagchi, however, pointed out that those events took place after the disqualification petitions had been filed.

"That does not matter," Sibal responded.

"It does matter. In disqualification proceedings, subsequent events are ordinarily not taken into consideration," Justice Bagchi replied.

When Sibal relied on the Constitution Bench's ruling in Subhash Desai, Justice Bagchi clarified that the judgment dealt with the validity of the legislature party's decision to appoint a different whip and leader.

"That is one aspect. The disqualification issue is another," he observed.

Sibal, in response, submitted that while the first set of petitions was filed on June 23 against 16 MLAs, the remaining petitions were filed only on July 2, making all events prior to July 2 relevant.

The matter will be heard next on August 11.

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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