The Supreme Court on February 22, while hearing a plea moved by the Uddhav Thackeray faction of the Shiv Sena, refused to stay the Election Commission's order that granted the party's name and bow and arrow symbol to the faction headed by Maharashtra Chief Minister Eknath Shinde.
The apex court, however, will continue its hearing on the Thackeray camp's plea, which has alleged that the EC did not take into account the intra-party majority it holds in the Rajya Sabha and Maharashtra Legislative Council (MLC).
The court has permitted the Thackeray faction to use the 'Shiv Sena (Uddhav Balasaheb Thackeray)' name and 'flaming torch' symbol for the upcoming assembly bye-elections in Maharashtra's Chinchwad and Kasba Peth.
The court, furthermore, issued notice to the Shinde faction asking them to file replies to the Thackeray faction’s petition.
Senior Counsel Kapil Sibal, appearing for the petitioner, argued that since the rival faction has now been recognised as the real Shiv Sena they may issue a whip and disqualify the members of their group. To this, the lawyers for Shinde faction informed the court that they will not initiate disqualification.
Sibal further argued that the EC did not consider Thackeray faction’s strength in Rajya Sabha and Legislative Council to arrive at majority. Shinde faction countered this, saying that the EC took into account the percentage of votes that the Shinde faction legislators had received in the last elections.
Lawyers representing the Shinde faction also objected to their rival faction directly approaching the SC against EC’s order, instead of moving to the Bombay High Court. The bench said it will consider this on the next date of hearing.
The case is likely to come up for hearing after two weeks.
Earlier, the EC had on February 17 issued a 78-page order, recognising the the Shinde-led group as the real Shiv Sena and ordered allocation of the bow and arrow poll symbol to it.
The Commission said MLAs backing Shinde got nearly 76 per cent of votes polled in favour of the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly polls.
The Thackeray faction's MLAs got 23.5 per cent of votes polled in favour of the winning Shiv Sena candidates, the three-member Commission said in a unanimous order.
Meanwhile, the apex court’s Constitution Bench is currently hearing the cases filed by both the faction on the tenth Schedule, which seeks to prevent the defection of elected and nominated members and contains stringent provisions against defections.
Crisis in Maharashtra
A political crisis erupted in the state in June last year after Shinde, along with a majority of Sena MLAs, revolted against the Uddhav Thackeray-led Maha Vikas Aghadi government in the state.
On June 29, 2022, the apex court refused to stay the direction of the Maharashtra governor to the 31-month-old Maha Vikas Aghadi (MVA) government to take a floor test to prove its majority. Thackeray subsequently resigned as it was apparent that the MVA lacked the numbers to pass the floor test.
On August 23, 2022, a three-judge bench of the top court, headed by then chief justice N V Ramana, since retired, had formulated several questions of law and referred to the five-judge bench the petitions filed by the two Sena factions, raising several constitutional questions related to defections, merger and disqualification.
It said the batch of petitions raised important issues related to the Tenth Schedule of the Constitution pertaining to disqualification, powers of the speaker and governor and judicial review.
The apex court had said the proposition of law laid down by the Constitution Bench in the Nabam Rebia case stands on contradictory reasoning, which requires gap-filling to uphold constitutional morality.
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