The Supreme Court on Thursday observed that safeguarding constitutional democracy is a collective responsibility and cannot rest solely with the judiciary, declaring that the “Constitution is lived by the people”. The observation came during the hearing of petitions filed by the Uddhav Thackeray-led Shiv Sena (UBT) challenging the Election Commission of India’s decision to recognise the Eknath Shinde-led faction as the “real Shiv Sena” and allot it the party’s name and “bow and arrow” symbol.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing arguments by senior advocate Kapil Sibal, appearing for the Thackeray faction. During the proceedings, Sibal argued that the burden of keeping democracy alive ultimately rested with the Supreme Court, expressing scepticism about Parliament changing a system that could benefit political parties in power. Justice Bagchi responded that safeguarding constitutional democracy was a “collective responsibility” and stressed that the Constitution ultimately derived its vitality from the people. CJI Kant also cautioned against underestimating other constitutional institutions, observing that they too were committed to fulfilling their responsibilities.
The hearing also turned to the mechanism for deciding the disqualification of legislators under the anti-defection law. CJI Kant observed that the issue of who should decide disqualification petitions may require a “relook” and referred to the possibility of entrusting the task to an independent tribunal. At present, disqualification petitions under the Tenth Schedule are decided by the Speaker or Chairman of the respective House. Sibal argued that the existing system created serious difficulties because political considerations could influence how and when disqualification proceedings were decided.
The Thackeray faction also urged the court not to interpret constitutional provisions in a manner that could encourage defections. Sibal argued that the Constitution could not be interpreted to reward the very conduct that the anti-defection law was intended to prevent. He maintained that the legal test for deciding whether a legislator should be disqualified was distinct from the test for determining whether a political party had split. The argument forms a key part of the Uddhav faction’s challenge to the Election Commission’s February 2023 order recognising the Shinde group as the real Shiv Sena.
The dispute dates back to the 2022 split in the Shiv Sena, when Shinde and a group of MLAs rebelled against the leadership of then Maharashtra chief minister Uddhav Thackeray. The political upheaval led to the collapse of the Thackeray-led Maha Vikas Aghadi government and Shinde subsequently became chief minister with BJP support.
The Election Commission later recognised the Shinde faction as the official Shiv Sena and awarded it the traditional “bow and arrow” election symbol. The Thackeray faction has challenged that decision, questioning the criteria used by the poll body to determine which group represented the original political party.
Sibal questioned the Election Commission’s reliance on subsequent developments while deciding entitlement to a party symbol under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order. He argued that such an approach could create a situation in which defecting legislators use their political position to subsequently consolidate organisational support and then claim control over the original party. He described such a proposition as dangerous for the anti-defection framework.
The Supreme Court had earlier observed that it would have to determine whether a split had actually occurred within the Shiv Sena and whether a division beginning in the legislature party could subsequently spread to the political organisation and its primary membership. Sibal maintained that a split among legislators by itself could not automatically establish a split in the political party. The hearing has been adjourned and will resume on August 18.