EC failed to act as neutral arbiter: Uddhav plea in SC

Thackeray on Monday challenged EC’s 77-page order, pleading that the issue of allotting the party symbol was “intertwined” and directly connected with those pending before the Constitution bench.

The Election Commission failed to act as a “neutral arbiter” in allotting the Shiv Sena party symbol to the faction led by Maharashtra chief minister Eknath Shinde, an appeal filed by Uddhav Thackeray before the Supreme Court on Monday argued, besides pointing out alleged errors in the poll panel’s order on the grounds that some of the issues that it ruled on were still pending consideration before the Constitution bench of the top court.

Uddhav Thackeray addresses the media during a press conference at Sena Bhavan in Dadar in Mumbai on Monday. (Anshuman Poyrekar/HT PHOTO)

Thackeray on Monday challenged EC’s 77-page order, pleading that the issue of allotting the party symbol was “intertwined” and directly connected with those pending before the Constitution bench, and that his appeal should therefore be heard with a bunch of existing cases that are to be taken up by thetop court on Tuesday.

“The entire edifice of the impugned order is based upon the purported legislative majority of the respondent (Shinde) which is an issue to be determined by this court in the Constitution bench,” the appeal said.

“The test of legislative majority adopted by EC could not have been applied at all in view of the fact that the disqualification proceedings were pending against the legislators supporting the respondent. If in the disqualification proceedings, the legislators are held to be disqualified, there is no question of these legislators then forming a majority. Thus, the basis of the impugned order itself is constitutionally suspect,” it added.

EC followed a triple test while . The first test — objectives of the party constitution — was deemed improper because the 2018 constitution of the Shiv Sena was found to be undemocratic. The second test — that of the majority in the organisational body of the party — was also not considered because the poll panel found that neither side provided accurate details of internal bodies.

Therefore, ECI relied on the third prong — the test of majority in the legislative wing. Here, the poll body found that 40 of the 55 members of legislative assembly backed the Shinde faction, which translated to 76% of the total votes polled by the unified party in the 2019 assembly elections. Moreover, 13 of the 18 Lok Sabha members of the party backed Shinde, which translated to 73% of the total votes polled in the 2019 general elections.

The EC decision came on a day last week when the Supreme Court agreed to examine more closely a 2016 ruling, which is at the centre of the contention regarding disqualification of some Shinde camp MLAs, which was a crucial turning point in the fight within the Shiv Sena.

Thackeray argued in the appeal that the Shiv Sena constitution recognised the Pratinidhi Sabha as the apex representative body of the party and that he had the support of 160 of its 200 members. The EC, however, disregarded the party constitution calling it “undemocratic”, and went by the support to Shinde of 40 out of 67 members of Maharashtra legislative assembly, and 13 out of 22 MPs of both houses of Parliament. This, Thackeray said, was a violation.

“The Election Commission has failed to discharge its duties as a neutral arbiter of disputes under para 15 of the Election Symbols (Reservation and Allotment) Order, 1968 and has acted in a manner undermining its constitutional status,” said the appeal filed by advocate Amit Anand Tiwari and settled by senior advocate Devadatt Kamat.

The plea was mentioned for urgent listing by senior advocate Abhishek Manu Singhvi before a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud on Monday. As the Court was not willing to take up any out-of-turn mentioning matters, the bench told Singhvi to mention the matter on Tuesday.

In its order, EC held that proceedings under the Symbols Order and disqualification of a legislator under the Tenth Schedule of the Constitution operate in different spheres, and that disqualification is not based on cessation of membership of that political party. Contesting this, the appeal said: “There is an intimate, direct connection and bearing of the proceedings under the Tenth Schedule to a determination of whether a member by his action ceases to be a member of the political party.”

Further, the EC was faulted for holding a split in the “political party” when all arguments and pleadings restricted to the issue of split in the legislative wing of the Shiv Sena.

“ECI has failed to consider that the petitioner (Thackeray) enjoys majority in the Legislative Council (12 out of 12) and Rajya Sabha (3 out of 3),” the appeal said. In a case of this kind where there is a conflict even in the legislative majority, the legislative majority alone is not a safe guide to determine as to who holds the majority for the purposes of deciding a petition under the Symbols Order, Thackeray argued.

Shinde rejected Thackeray’s allegations and said: “In a democracy, decisions are based on laws and the Constitution. For some people, it has become routine that if the decision is in their favour, they will hail it, if it’s not they criticise it,” the chief minister said.