The Supreme Court on Wednesday refused to stay the Election Commission of India order recognising the Eknath Shinde faction as the real Shiv Sena, allowing Uddhav Thackeray, the former Maharashtra chief minister and son of Shiv Sena founder Balasaheb Thackeray, to use the ‘flaming torch’ symbol for the bye-elections in Chinchwad and Kasba Peth.
 
The apex court also asked the Shinde camp to file a reply to the petition filed by Thackeray challenging the Election Commission decision of February 17 to recognise the Shinde-led faction as the real Shiv Sena and allot the party name and the ‘bow and arrow’ symbol to it.

The court has given two weeks’ time to the Shinde faction for filing any counter-affidavit and Thackeray one week to file his rejoinder.

“The ECI order is confined to a symbol. Now we cannot pass an order to stay the Election Commission order. We are entertaining the SLP,” said a bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala.

“Ultimately, that is a contractual relationship within a political party. Any further action is not based on the Election Commission decision. If there is any action, then you (Thackeray) will have to exhaust your remedies under the law,” the CJI said.

Pleas by the Thackeray group to restrain Shinde group from taking over assets and bank accounts of Shiv Sena in Parliament and Maharashtra assembly were not entertained by the SC.

Senior advocate Kapil Sibal representing Thackeray argued that the Shinde group being termed original Shiv Sena would now issue a whip to them to vote in its favour, failing which fresh disqualification proceedings would be initiated.

“Appointment of the chief whip is per se illegal. This doesn't emanate from the party. Members of legislature cannot pass such a resolution, cannot defy whip, cannot remove the chief whip. Shinde was acting as a group leader of the members of the legislative assembly. In any assembly 10 people can get together and remove the whip and then they can go to the opposite party and destabilise the government and have their own Chief Minister? This is the outcome… if this is held to be valid…an elected government can be removed anytime depending on this arithmetic,” said Sibal.

The Shinde group’s lawyer, in response, said it would not precipitate the matter.

After becoming chief minister in June 2022, Shinde had petitioned the ECI, staking claim to the name, ‘Shiv Sena’ and the ‘bow and arrow’ symbol.

“The ECI relied on the strength of the legislative wing of the party to arrive at its decision rather than on the test of its organisational wing. The ECI explained that although it had attempted to apply the test of the organisational wing, it could not come to any satisfactory conclusion because the latest constitution of the party was not on record. The claims of numerical majority in the organisational wing of the party by both factions were not satisfactory, the ECI had opined,” the online platform Bar and Bench noted in its report.

The Shinde faction had 40 MLAs and 13 MPs as against 15 MLAs and only 5 MP in the Thackeray faction.

The Shiv Sena office in the Parliament House was allotted to the Shinde faction on Tuesday.
 
Meanwhile, Shiv Sena (UBT) MP Arvind Sawant has said that with the apex court admitting their plea it has indicated that it (plea) is maintainable. “This is a relief as doors have not been closed for us,” he said.