Shiv Sena Rift | Election Commission To Decide Issue Of Maintainability Of Eknath Shinde's Petition While Passing Final Order

The issue arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray over the Party name “Shiv Sena” and the symbol “Bow and Arrow” was heard by the Election Commission of India under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 on 10th January 2023. 

Senior Advocate Kapil Sibal, appearing on behalf of the Uddhav Thackeray faction and apprised the Chairman of ECI that they have filed an application to consider the issue of maintainability of the petition filed by Shinde as preliminary issue. He stated that since Mr. Eknath Shinde was deemed disqualified, the dispute petition was not maintainable. On the other hand, Senior Advocate Mahesh Jethmalani, appearing on behalf of Mr. Eknath Shinde submitted the said contention had already been decided by the Supreme Court in its order dated 27.09.2022 when after hearing the same contentions, the Apex Court had directed the ECI to proceed with the dispute. It was also argued from the Shinde faction that the contention of maintainability had also been decided by the Single Judge of the Delhi High Court vide order dated 15.11.2022 and by the Division Bench vide order dated 15.12.2022.

The Commission after hearing the parties and in view of the orders and judgments of Supreme Court and Delhi High Court, stated that the said contention will be dealt with the main matter. The ECI said that "it will render the final decision on all issues, including the issue of maintainability while passing the final order".

Mr. Jethmalani, proceeded with the arguments on the merits of the case. Some of the key points from Mr. Jethmalani’s arguments are:

i. There is split in the Shiv Sena recognized Political Party, which is evident as there are several communications of the Thackeray faction with ECI communicating the split. He also pointed out the notice of ECI taking cognizance of the split vide letter dated 22.07.2022 (after taking into account all the communications from both the factions with respect to the split on the party)

ii. The tests laid down in the judgement of Shri. Sadiq Ali & Anr v The Election Commission of India & Ors [1972] 4 SCC 664 (Congress’s split in the year 1969), landmark judgment in reference to split and allotment of symbols under 1968 Symbols Order are:

a. Majority in the Legislative Wing (MPs and MLAs) and Organizational Wing (the office bearers of the party) and

b. Majority in Electorate Representation

iii. Mr. Jethmalani pointed out that the Shinde faction has majority in the Legislative Wing as well as Organizational Wing of the Party and it also enjoys the majority in the electorate representation.

iv. Another argument was with reference to the undemocratic organizational structure of the party. The Party constitution was amended by Shri. Uddhav Thackeray to suit his whims and fancies in the year 2018.

Mr. Maninder Singh, Sr. Adv. appearing on behalf of the Shinde faction, also made his arguments and submitted a brief note to the Commission. Mr. Siddharth Bhatnagar, Sr. Adv. also appearing on behalf of Shinde faction, in his submissions showed via chart as how the organizational structure of the party was amended and run on the discretion of one man i.e., Uddhav Thackeray. On this note, the Shinde faction concluded their arguments.

Mr. Sibal, requested for some time to present his arguments and accordingly the Commission vide hearing order dated 10.01.2023, granted one week’s time, the next date fixed by the Commission is 17.01.2023.

Advocates appearing on behalf of Shinde faction: Mr. Mahesh Jethmalani, Sr. Adv, Mr. Maninder Singh, Sr. Adv., Mr. Siddharth Bhatnagar, Sr. Advocate, Ms. Malvika Trivedi, Sr. Adv along with Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva, Ms. Manini Roy, Ms. Shivani Bhushan, Mr. Piyush Tiwari, Ms. Chaitali Jugran and Ms. Kanjani Sharma.

Advocates appearing on behalf of Thackeray faction: Mr. Kapil Sibal, Sr. Adv. along with Mr. Devdatt Kamat, Sr. Adv.

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