Sena vs Sena: SC to hear plea against EC decision on ‘Bow and Arrow’ dispute tomorrow

New Delhi: The Supreme Court on Tuesday said it will hear the plea, by Uddhav Thackeray challenging the Election Commission’s decision to allot the name ‘Shiv Sena’ and the ‘Bow and Arrow’ symbol to the faction led by Maharashtra Chief Minister Eknath Shinde, on Wednesday.

A bench led by Chief Justice of India DY Chandrachud agreed to hear the plea on February 22, at 3.30 pm.

Senior Advocate Kapil Sibal urged the Supreme Court to hear the plea on Wednesday, submitting that if the EC decision is not contested and challenged, the rival faction will take over everything, including the party’s bank accounts, among other things.

CJI Chandrachud said, “It will not disrupt the Constitution Bench hearing because three judges are waiting for them.”He added that he would finish the Constitution Bench hearing on the Maharashtra political crisis and take it up the plea contesting the EC’s ruling on the Sena symbol thereafter on Wednesday.

The court said that it will read the matter first.

The Uddhav Thackeray-led faction of the Shiv Sena moved the Supreme Court challenging the EC’s move to allot the name ‘Shiv Sena’ and ‘Bow and Arrow’ symbol to the rival faction led by CM Shinde.

Uddhav, in his plea filed on Monday, said that ECI failed to consider that his faction enjoys the majority in the Legislative Council and Rajya Sabha.

Uddhav Thackeray in the plea, also submitted that the legislative majority alone, in this case, could not be the basis for passing of the order by EC.

Challenging the EC decision, Uddhav Thackeray said the poll panel was erroneous in its decision and said that, “the entire edifice of the impugned order (EC’s decision) is based upon the purported legislative majority of the Respondent (Shinde) which is an issue to be determined by the top court in the Constitution Bench”.

“The ECI has failed to consider that the Petitioner enjoys a majority in the Legislative Council (12 out of 12) and Rajya Sabha (3 out of 3). It is submitted that in a case of this kind where there is a conflict even in the legislative majority i.e., Lok Sabha on the one hand and Rajya Sabha on the other as well as Legislative Assembly and Legislative Council, more particularly, having regard to the fact that there is a possibility of the alleged members losing their right of membership, the legislative majority alone is not a safe guide to determine as to who holds the majority for the purposes of adjudicating a petition of the Symbols Order,” the plea said.

“In these circumstances, it is respectfully submitted that the legislative majority test cannot be the test which can be applied for the purposes of determination of the present dispute,” it added.Uddhav Thackeray said the EC has erred in holding that there is a split in the political party, submitting that “in the absence of any pleadings and evidence that there was a split in a political party, the finding of the ECI is completely erroneous on this ground”.

“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 EC said.

Uddhav submitted that the EC has failed to appreciate that he enjoys overwhelming support in the rank and file of the party. He said his faction has an overwhelming majority in the ‘Pratinidhi Sabha’, which is the apex representative body representing the wishes of the primary members and other stakeholders of the party.

The Pratinidhi Sabha is recognised as the apex body under Article VIII of the party constitution.

Questing the EC, the former Maharashtra CM said the poll panel has disregarded the constitutionality test by holding that the constitution of the party cannot be held sacrosanct as the same could not be said to be ‘democratic’.

Uddhav submitted further that the EC has failed to discharge its duties as a neutral arbiter of disputes and has acted in a manner undermining its constitutional status.

He claimed the poll panel has disregarded the party constitution of 2018, which was acknowledged even by the respondent, Shinde, to be the constitution governing the party, on the ground that it is undemocratic and was not communicated to the Commission.

“These observations are totally erroneous as the amendments in the Constitution were categorically communicated to the Commission in 2018 itself,” Uddhav said in his plea.

“The petitioner enjoys the support of 160 of approximately 200-odd members in the Pratinidhi Sabha. The petitioner had demonstrated before the EC an overwhelming majority by filing affidavits of the members of the organisational wing of the party,” the plea stated.