The Supreme Court on Wednesday said it will have to examine whether the rebellion by Shiv Sena MLAs in 2022 can be viewed as the party having split, reported Live Law.

The court was hearing a petition by the Uddhav Thackeray-led Shiv Sena challenging the Election Commission’s move to recognise the Eknath Shinde faction as the official party and allot it the bow and arrow symbol.

Appearing for the Uddhav Sena, advocate Kapil Sibal told a bench headed by Chief Justice Surya Kant that the Election Commission should not have concluded that the Shiv Sena had split because of a division in its legislative party.

“Perhaps the commission’s reasoning requires review,” the bench was quoted as saying by Live Law. “But it will be very difficult to ignore the fact that a group, which is actually maybe born in the legislative polls, did not have a resonance in the [primary organisation].”

It added: “First we see whether there is a split right? The split can originate in the legislative party, but its crack can percolate in the primary organisation.”

The Shiv Sena had split in June 2022 after then-Chief Minister Eknath Shinde claimed the support of 39 out of the Shiv Sena’s 55 MLAs, in addition to 10 independent MLAs, and rebelled against Thackeray’s Maha Vikas Aghadi coalition. The Shiv Sena, the then-united Nationalist Congress Party and the Congress were allies in the government.

Shinde went on to dislodge the Thackeray-led Maharashtra government, becoming chief minister with the support of the Bharatiya Janata Party.

In 2023, the Election Commission of India handed over the official name and election symbol – the bow and arrow – of the Shiv Sena to the Shinde faction.

The poll panel had said that 40 MLAs backing Shinde got nearly 76% of the votes polled in favour of the 55 Shiv Sena candidates who had won their seats in the 2019 Maharashtra Assembly polls. On the other hand, the Uddhav Thackeray faction’s 15 MLAs got 23.5% of the votes polled.

On Wednesday, Sibal cited the Supreme Court’s 2023 Constitution Bench judgment, which ruled that a legislative majority alone cannot determine the real party.

Replying to this, Bagchi said that the judgement “never says that a split in the legislature party, if it gets reflected in the organisation and the primary membership”, needs to be ignored, reported Live Law.

Raising broader constitutional concerns, Sibal said that allowing the legislative wing of a party to be “sold” to a ruling party, resulting in an elected government being removed, makes “mockery of justice”.

“We cannot see democracy being withered away like this,” he was quoted as saying.

In January 2024, Maharashtra Assembly Speaker Rahul Narwekar also held that the group of MLAs headed by Shinde constituted the real Shiv Sena when rival factions of the political party emerged in June 2022.

The Uddhav Sena has since had a new election symbol – the mashal, or torch.

Edited by Tanya Shrivastava.

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