The Supreme Court has raised a key question in the Shiv Sena Symbol Dispute. It asked whether the Election Commission of India (ECI) may need to reconsider its symbol order if the Court overturns the Maharashtra Speaker’s decision on disqualification petitions. The ECI had recognised the Eknath Shinde faction as the real Shiv Sena and allotted it the reserved ‘bow and arrow’ symbol.
A Bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana raised the issue. The Court was hearing a petition filed by Uddhav Thackeray challenging the ECI’s decision.
Speaker’s Disqualification Decision Under Scrutiny
The proceedings relate to the Maharashtra Legislative Assembly Speaker’s January 2024 decision. The Speaker dismissed mutual disqualification petitions filed by the rival factions.
During the hearing, Justice Joymalya Bagchi raised a question about the possible effect of reversing that decision.
The Court asked what would happen to the ECI’s symbol order if it ultimately found the Speaker’s decision erroneous. It also questioned whether the ECI would then have allotted the symbol to members who should have faced disqualification under the law.
Shinde Faction Relies on Subhash Desai
Senior Advocate Neeraj Kishan Kaul appeared for the Eknath Shinde faction. He addressed the relationship between two separate legal proceedings.
One involves the ECI’s powers under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968. The other concerns the Speaker’s powers under the Tenth Schedule of the Constitution.
Kaul relied on the Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra.
He argued that the ECI and the Speaker exercise powers in distinct and independent fields. According to his submission, both proceedings operate prospectively.
Court Questions Impact of Disqualification
Justice Bagchi referred to observations in Subhash Desai concerning the consequences of disqualification.
The Court examined a situation where a faction relies on its legislative majority to claim recognition. It questioned what happens if the law later disqualifies members who formed the basis of that majority.
In such circumstances, the foundation supporting the faction’s claim could cease to exist.
Justice Bagchi also stressed the continuing nature of rights over an election symbol. The Bench therefore questioned whether an erroneous disqualification decision could become relevant when reconsidering the symbol order.
Symbol Rights Are Continuing in Nature
The Court observed that enjoyment of an election symbol is a continuing right. This raised another issue before the Bench.
If the Court finds the Speaker’s decision legally incorrect, should that finding affect the continuing operation of the ECI’s earlier symbol order?
This question forms a significant part of the ongoing Shiv Sena Symbol Dispute before the Supreme Court.
Shinde Faction Warns Against Repeated Litigation
Kaul argued against reopening symbol allocations after subsequent disqualification decisions.
He submitted that such an approach could trigger an endless cycle of litigation. He also argued that disqualification operates prospectively.
According to his submission, disqualification affects membership of the Legislative Assembly. It does not automatically invalidate earlier electoral actions or votes already cast.
Supreme Court Continues Hearing
The Supreme Court has not yet delivered a final ruling on the issue.
The Bench continues to hear arguments on the relationship between anti-defection proceedings under the Tenth Schedule and the ECI’s powers under Paragraph 15 of the Election Symbols Order.
