'ECI Acted With Bias & Unfairness' : Uddhav Thackeray In Plea Before Supreme Court Challenging Decision To Recognise Eknath Shinde Group

In yet another development in Maharashtra's Political Crisis, the Uddhav Thackeray faction has approached the Supreme Court of India challenging the decision of the Election Commission  which recognized the Eknath Shinde faction as the official Shiv Sena. The plea challenging the order of 17th February 2023 passed by the Election Commission of India was mentioned by Senior Advocate Dr. Abhishek Manu Singhvi before the Chief Justice of India, requesting it to be listed along with the ongoing cases before the Constitution Bench on 21st February 2023. However, CJI DY Chandrachud did not allow Singhvi's mentioning, as the matter was not included in the mentioning list. CJI asked Singhvi to mention the matter again tomorrow. 

The special leave petition has been filed by Uddhav Thackeray himself challenging the ECI's order.

At the outset, the petition submits that the issues arising in the petition have a direct bearing on the issues which are being considered by the Constitution Bench and thus, the present petition may be heard along with the matters being considered by the Constitution Bench. 

The following grounds have been raised through the petition–

I. ECI erred in holding that disqualification under Tenth Schedule was not based upon cessation of membership 

The petition states that the ECI has erred in holding that the disqualification under the Tenth Schedule and proceedings under para 15 of the Symbols Order (which provide the ECI power to recognise one rival section within the party as the recognised political party) operate in different spheres and that disqualification is not based on cessation of membership of that political party. The petition submits–

"The observations in the impugned order are in complete ignorance of para 2(1) (a) of the Tenth Schedule which itself envisages cessation of membership of the Political party based on which the said member is liable to be disqualified. There is an intimate, direct connection and bearing of the proceedings under the Tenth Schedule to a determination of whether a member by his action ceases to be a member of the political party."

The petition argues that if a legislator has already ceased to be a member of a political party and such determination under the Tenth Schedule is only ex post facto recognition of the said fact, then the proceedings under para 15 of the Symbols Order cannot override the outcome of the proceedings under the Tenth Schedule.

It is argued that Eknath Shinde's acts amount to giving up of membership of party as per paragraph 2(1)(a) of the tenth schedule and hence his application could not have been entertained.

II. ECI has erred in holding that there is a split in the party

The second argument raised in the petition is that the ECI has erred in holding that there is a split in the political party. The petition argues that an averment was only made regarding a split in the Legislative Party, and not the political party. Thus, as per the petition–

"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."

III. Thackeray faction enjoys overwhelming support in the party

As per the petition, the Uddhav Thackeray factions enjoys an overwhelming support in the rank and file of Shivsena. It states that–

"The Petitioner 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 the apex body recognized under Article VIII of the Party Constitution. The Petitioner enjoys the support of 160 members out of approximately 200 odd members in the Pratinidhi Sabha."

IV. ECI has erred in disregarding the Test of Party Constitution

The ECI, in its order, had disregarded the constitutionality test by holding that the Constitution of the party was undemocratic and thus could not be held sacrosanct. The petition states that the same was erroneous as the ECI failed to discharge its duties as a neutral arbiter of disputes and acted in a manner undermining its constitutional status. As per the petition–

"It is submitted that the aforesaid observations ought not to have been made by a Constitutional authority in view of the fact that the issue as to the existence of the amended 2018 constitution was not at all in dispute. Without even giving an opportunity or even pointing out to the Petitioner that the ECI had doubts over the existence of the 2018 amendment, the ECI ought not to have made the aforesaid remarks."

V. ECI acted with bias 

The petitioner alleges that the ECI acted in a "biased and unfair manner".

"...the unfair treatment is further evident from the fact that the Respondent No. 2 has arrived at certain conclusions without putting the Petitioner to notice or giving the Petitioner an opportunity to explain his position.For instance, the Respondent No. 2 concluded that the 2018 Constitution was undemocratic".

"It is submitted that the ECI has failed to discharge its duties as a neutral arbiter of disputes under para 15 of the symbols order and has acted in a manner undermining its constitutional status"

VI. Legislative Majority alone cannot be the basis for passing the order

While employing the test of majority, the ECI had relied upon the majority in the legislative wing, and not the organisational wing. The petition argues that legislative majority could not be solely relied upon as the legislators were facing disqualification proceedings under the Tenth Schedule which were initiated much before to the filing of the para 15 Petition by the Shinde faction. The petition argues–

"It is well settled that the disqualification relates back to the date when it occurred."

It also submits that the ECI had failed to consider that the Thackeray faction enjoyed majority in the Legislative Council (12 out of 12) and Rajya Sabha (3 out of 3). The petition submits–

"In a case of this kind where there is a conflict even in the legislative majority i.e., Lok Sabha on 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 under Para 15 of the Symbols Order."