New Delhi, September 17 (Daily Kiran) : The Supreme Court engaged in significant discussions on September 17 regarding the Shiv Sena’s name and election symbol, the ‘Bow and Arrow.’ During the hearing, Neeraj Kishan Kaul, representing the faction led by Eknath Shinde, defended the Election Commission’s decision. He asserted that the majority of the party’s MPs, MLAs, and organizational units support the Shinde group, validating the Commission’s ruling.
Kaul informed the court that out of 18 Shiv Sena MPs, 13 aligned with the Shinde faction. He noted that the majority of MLAs also favored their group. Affidavits demonstrating support from the organization and its workers were submitted to the Election Commission, which took them into account before ruling on the symbol dispute.
He argued that pending disqualification proceedings against Shinde’s MPs and MLAs were irrelevant to the symbol controversy. Kaul stated that the disqualification petitions had been dismissed, and the previous assembly had completed its term, paving the way for a new assembly.
Kaul emphasized that if the Election Commission had to wait for the resolution of disqualification matters, it could indefinitely delay the resolution of such disputes. He maintained that the Commission’s process should not be halted due to ongoing proceedings before other constitutional authorities.
During the hearing, Justice Joymalya Bagchi raised critical questions about whether the Election Commission had exercised its discretion appropriately. He highlighted the necessity of determining if the Commission had considered all possible options. Justice Bagchi remarked that the Commission could have contemplated providing a temporary election symbol. He also questioned why the Commission relied on “legislative majority” as a primary basis despite pending disqualification proceedings, suggesting that this reasoning lacked clear explanation.
Justice Bagchi pointed out that after the implementation of the Tenth Schedule (anti-defection law), the identity and protection of a political party had become more crucial than that of individual candidates. He raised concerns about whether a representative who leaves a party could carry the original party’s ideology and identity with them. The court noted that preserving a party’s identity within the current framework of anti-defection law is a significant constitutional objective.
Referencing the Subhash Desai case, Justice Bagchi stated that the Constitution Bench had concluded that a party’s whip is appointed by party leadership, not by the legislators. Therefore, if a faction appoints its own whip, it could be a relevant factor in disqualification proceedings, which cannot be overlooked when making decisions on disqualification petitions.
Kaul argued that the Election Commission based its decision not only on the number of seats but also on the total votes received by the party. In response, Justice Bagchi noted that those votes were cast for the “undivided Shiv Sena” and questioned whether, after the party’s split, it could be conclusively stated that voters supported the candidates or the party itself.
He remarked that the Commission’s conclusion was largely based on the assumption that voters had cast their votes for the candidates, making it challenging to ascertain whether voter loyalty lay with the candidate or the party post-split.
Kaul contended that comments made in the Subhash Desai case were not binding directives for the Election Commission under the symbol order. He argued that if the decision did not entirely dismiss legislative majority as a basis despite pending disqualification proceedings, the Commission could consider it a valid option.
Chief Justice DY Chandrachud inquired whether the relevant comments from the Subhash Desai decision were limited to the context of the Tenth Schedule or if they also impacted the Election Commission’s proceedings. He questioned whether that ruling dismissed the argument that the Commission could continue its process despite pending disqualification actions.
The court indicated it would thoroughly examine the “legislative majority” criteria adopted by the Election Commission and assess whether the decision aligned with constitutional values and the spirit of the anti-defection law. The hearing is set to continue.
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