Shiv Sena row: Will have to first see if there was split in party: SC

The Supreme Court on Wednesday said that it will have to first see whether there had been a split in the Shiv Sena, as such a division may originate in the legislature party and the fissure can percolate into the organisation and the primary membership.

The observations were made by a bench comprising Chief Justice Surya Kant and justices Joymalya Bagchi and V Mohana during the final hearing on the pleas by the Uddhav Thackeray faction to the Election Commission's decision recognising the Eknath Shinde-led faction as the original Shiv Sena and allotting it the party's name and the "bow and arrow" symbol.

During the hearing on the fourth day, Justice Bagchi said, "First, we have to see whether there is a split. A split may originate in the legislature party, but the fissure can percolate into the organisation and the primary membership."

To this, senior advocate Kapil Sibal, appearing for the Uddhav faction, said, "As a proposition of law, a split in the political party can never arise merely from a split in the legislature party. That has been decided by the Constitution Bench (in a judgement)."

Justice Bagchi said the judgement 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 said.

Sibal said the judgement does not speak of the legislature party. The bench said it needed clarity on this aspect.

"The Shinde group had the support of 11 'Rajya Prabharis'. A Rajya Prabhari is part of the party structure. It is not something outside the Shiv Sena's organisational structure. More importantly, when we consider a political party, we are not concerned only with office-bearers. We also have to consider the primary membership," the bench said.

Sibal questioned the Election Commission's approach in determining whether there was a genuine dispute within the party and whether the faction approaching it had exhausted the internal remedies available under the Shiv Sena's constitution. He said that the Commission's reasoning effectively required a faction to pursue internal remedies even when the rival group had already moved to another location, formed a government and had itself acted contrary to the party constitution.

Sibal also challenged the Commission's assessment of the Shiv Sena's organisational structure, including the powers of the party chief and the manner in which various organisational posts were filled.

"The point is, who is the Election Commission to determine at which level, for which posts and how many persons must be elected," Sibal asked.

He said there was no dispute before the Commission regarding the validity of the party constitution, elections held under it or nominations made under it.

The poll panel's characterisation of the constitution as "autocratic" was aimed at excluding the organisational structure from consideration and ultimately relying on the legislative majority to decide the symbol dispute.

"You predetermine the end and then manipulate the logic to reach it. That is contrary to the very exercise contemplated under Paragraph 15," he said.

The bench examined whether a split originating in the legislature party could subsequently manifest itself within the broader party organisation and primary membership, and whether such developments could be considered by the Election Commission while deciding a dispute under Paragraph 15.

Sibal reiterated that as a matter of law, a split in a political party could not arise merely from a split in its legislature party.

He said that once a prima facie split in the political party was established, subsequent developments could be considered by the Commission while reaching its final decision.

The CJI said if the poll panel had threshold jurisdiction but exercised it erroneously or adopted an approach contrary to settled principles, that would be distinct from a situation in which it had no jurisdiction at all.

Sibal said the Election Commission could exercise its powers under Paragraph 15 only if there was a split in the political party when its jurisdiction was invoked.

He said Shinde's subsequent position as chief minister could not itself be used to demonstrate greater support for his faction, as party members and others would naturally gravitate towards the person holding the office.

"He became chief minister. According to us, he was illegally appointed chief minister. You cannot first appoint him chief minister and then say that so many people have subsequently joined him and therefore he has greater strength," Sibal said.

The hearing would resume on Thursday.

The bench was hearing two pleas filed in 2024 by the Uddhav faction against the poll panel's order allotting the 'bow and arrow' symbol to the Maharashtra Deputy Chief Minister Eknath Shinde-led unit.

The pleas have also challenged the February 17, 2023 order of the EC recognising the Shinde faction as the original Shiv Sena.