The Supreme Court on Wednesday adjourned to November 12 the hearing on Uddhav Thackeray’s petition challenging the Election Commission of India’s February 17, 2023 order that recognised Eknath Shinde’s faction as the real Shiv Sena and granted it the party’s ‘Bow and Arrow’ symbol.
A Bench of Justice Surya Kant, Justice Ujjal Bhuyan and Justice N Kotiswar Singh listed the matter for November 12 after senior advocate Kapil Sibal, appearing for Thackeray, sought an urgent hearing, citing the upcoming local body elections scheduled for January next year. “There is urgency, My Lords. Local elections are due in January. Please hear it at the earliest,” Sibal said.
The Bench agreed, with Justice Kant saying “We will take it up on November 12.”
The dispute traces back to the Election Commission’s February 17, 2023 decision, which held that the Shinde group constituted the “real Shiv Sena” and was entitled to the party’s reserved election symbol. As an interim measure, the Uddhav Thackeray faction was permitted to use the name “Shiv Sena (Uddhav Balasaheb Thackeray)” along with a ‘Flaming Torch’ symbol during the Maharashtra Assembly bye-elections held on February 26, 2023.
The Thackeray camp has consistently argued that the poll panel exceeded its mandate under the Election Symbols (Reservation and Allotment) Order, 1968, by basing its decision primarily on legislative numbers rather than on the party’s organisational framework, ideology, and leadership structure.
Thackeray’s plea contends that the Commission failed to act as a neutral adjudicator by treating legislative strength as the sole determinant of authenticity and not the political party, based on its constitution and the organisational decision-making set-up.
The ECI, in its affidavit before the Supreme Court, defended its February 17, 2023 order recognising Eknath Shinde’s faction as the real Shiv Sena and granting it the party’s reserved ‘Bow and Arrow’ symbol. It asserted that the decision was a well-reasoned, quasi-judicial order made under the Election Symbols Order, 1968, and once delivered, the Commission became functus officio. The ECI also cited judicial precedents stating that quasi-judicial bodies need not be impleaded as parties in appeals.
Uddhav Thackeray, in his challenge, argued that the ruling was erroneous, based only on legislative strength, and ignored the party’s constitutional and organisational framework. He said legislative majority cannot determine the “real” party and that questions of legitimacy are still pending before the Constitution Bench.
The May 11, 2023 five-judge constitution bench verdict reaffirmed that only the political party, not the legislative wing, appoints the Whip and Leader, faulted the Governor’s move to call for a floor test, yet declined to restore Thackeray’s government.