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SC allows EC to decide plea by Eknath Shinde faction for Real “Shiv Sena” Tag

by Raju Vernekar
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By Raju Vernekar
Mumbai, Sept 27:

In a severe setback to the faction led by Shiv Sena party Chief Uddhav Thackeray, the Constitution bench of the Supreme Court (SC) refused to stay the proceedings pending before the Election Commission of India (ECI), to decide on a plea by the Eknath Shinde faction for real Shiv Sena tag, symbol, on Tuesday.
Forceful arguments on behalf of the Thackeray faction were made by Senior Advocates Kapil Sibbal, and Abhishek Manu Singhvi insisting that the issues that took place before the rebel faction led by Chief Minister Eknath Shinde proved its majority in the Maharashtra state legislature be considered first and the proceedings before the ECI should be stayed till that time.
The Shinde faction approached the ECI on July 19 in what capacity ? as a member of the Shiv Sena legislature party or as a primary member? Now he wants to go to the ECI and say that I am the political party. But much before that his membership to the party is in question in these proceedings, which have to be decided first, Sibal argued.
Shinde was appointed as a leader of the Shiv Sena legislature party (SLP) by the party chief Uddhav Thackeray (who will remain the party President till 2023). Shinde was not elected. As such the original issue of disqualification of 16 rebel MLAs in the light of the 10 th schedule of the Constitution should be decided first, Sibal submitted.
However, the bench comprising Justices DY Chandrachud, MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha allowed the ECI to decide a plea by the Shinde faction to be recognized as the ‘real’ Shiv Sena and to use the bow and arrow symbol of the party. ”We direct there shall be no stay on proceedings before the election commission. An interim application seeking stay stands dismissed,” the bench said.
The Thackeray camp argued that after the SC last heard the case relating to Maharashtra elections, they made a representation to the ECI requesting it not to proceed with the matter, as substantially similar matters were pending before the SC. If the ECI is allowed to continue with the proceedings, it would not only precipitate issues of great Constitutional import but would also cause irreparable injury to the applicant, the Thackeray camp said.
Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde group, submitted that the Speaker’s power is only about the legislature party and that it cannot circumscribe the ECI’s powers under the Symbols Order. Under Article 324 of the Constitution, the ECI possesses plenitude of powers to deal with any situation which arises about political parties. Even assuming that the situation is not covered under the Symbols Order, the ECI can invoke its plenary powers under Article 324 to deal with the present situation. He also stated that over 1.5 lakh party members have sent their representations to the ECI supporting the Shinde group. Senior Advocate Mahesh Jethmalani and Maninder Singh pointed out that Thackeray had already resigned without facing a floor test in the legislature.
Additional Solicitor General Tushar Mehta representing Maharashtra Governor Bhagat Singh Koshyari stated that after Thackeray resigned on June 29, given the stability of the state, the Governor invited Shinde to form the Government.  
Senior Advocate Arvind Datar appearing on behalf of the ECI submitted that the Commission is an autonomous body to decide the issue of the party tag and symbol and is not affected by the 10 th schedule since the disqualification of MLAs and such other issuers are related to the state legislature.
Maharashtra was thrown into a political crisis after Shinde and a rebel group of MLAs left Maharashtra and went first to and then to Guwahati, expressing its displeasure with the Shiv Sena’s alliance with the Congress and Nationalist Congress Party (MVA Government) on June 20.
The SC on June 27 granted interim relief to Shinde group by extending the time to file responses to the disqualification notices sent by the then Deputy Speaker Narhari Zirwal, till July 12. Subsequently, the Court on June 29 also gave the go-ahead to a floor test called for by the Governor. This led to the fall of the Uddhav Thackeray-led government and Shinde was sworn in as Chief Minister with the support of the Bharatiya Janata Party (BJP) on June 20. Now the ECI will decide the fate of the Thackeray and Shinde factions.

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