Shiv Sena row: No procedural infraction in EC order freezing party name, symbol, says HC

PTI, Nov 19, 2022, 8:59 PM IST

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New Delhi: Ruling on a petition by former Maharashtra chief minister Uddhav Thackeray, the Delhi High Court has said there was “no procedural infraction” in the Election Commission’s order freezing Shiv Sena’s name and election symbol following a “split” in the party.

In the order released on Saturday, Justice Sanjeev Narula said the commission passed the freezing order in view of urgency in respect of allotment of symbol on account of announcement of bypolls and the petitioner, who repeatedly took time to furnish necessary documents, now cannot allege violation of principles of natural justice and criticise the poll panel.

On November 15, the judge had dismissed Thackeray’s petition against the interim order of the Election Commission (EC) in open court and said a detailed order would be released later.

“There is a split between members of the ‘Shivsena’, a recognised political party in the State of Maharashtra. One group/faction is led by Eknathrao Sambhaji Shinde and the other by Uddhav Thackeray. Both claim to be the president of the original Shivsena party, and stake claim to its poll symbol of ‘bow and arrow’,” the court noted in its order.

“It (EC) took note of the urgency qua allotment of symbol, on account of announcement of the schedule of bye-elections, and made the directions for freezing. Therefore, the court does not find any procedural infraction on the part of EC in taking such a view. Petitioner, who repeatedly took time before EC for furnishing necessary documents, cannot now turn around and allege violation of principles of natural justice and criticise EC,” it said.

On October 8, the EC had passed the interim order barring the two Shiv Sena factions from using the party’s name and its election symbol in the Andheri East assembly bypoll.

The commission’s order was passed on a “dispute petition” filed by Shinde.

Earlier this year, Shinde, the current chief minister of Maharashtra, had raised a banner of revolt against Thackeray, accusing him of entering into an “unnatural alliance” with the Congress and the Nationalist Congress Party (NCP).

Over 40 of the Shiv Sena’s 55 MLAs had supported Shinde, forcing Thackeray’s resignation as chief minister.

In its order, the court said the course of action adopted by the EC was within its jurisdiction under the Symbols Order, as well as its plenary powers recognised by the Supreme Court.

It also noted that similar interim orders directing the freezing of reserved symbol have been passed in other instances of disputes between political parties and “there is thus nothing unusual or extraordinary in the present case”.

In the present case, the “EC was duty bound to ensure that the electoral steps of bye-elections are completed within time”, the court said.

The court said the issue of Shinde’s “disqualification” is pending before the Supreme Court which did not interdict the proceedings of the EC in spite of the petitioner raising issues with regards to the commission’s jurisdiction.

“There are two rival factions, i.e., petitioner (Thackeray) and respondent number two (Shinde), both claiming to be the original/majority faction. This hard truth cannot be discounted, therefore, EC’s jurisdiction is plainly demonstrable from the pleadings before the EC to meet the prima facie test for assuming jurisdiction,” the court said.

“Nonetheless, it is still open for petitioner to make such submissions (concerning non-maintainability of the dispute petition) as he deems fit, and this court is not making any comment or opinion on the merit of proceedings before the EC,” it added.

The petitioner had assailed the EC interim order on several grounds, including lack of procedural fairness. It was argued that the order was passed in the absence of a prima facie case in favour of the group led by Shinde.

Thackeray in his petition had alleged the EC displayed undue haste in passing the order without affording an opportunity to him to be heard despite an application requesting for an oral hearing.

He had argued in his petition that the freezing order was actuated by malice in law, is erroneous and the EC proceedings should be conducted in accordance with the principles of natural justice by providing opportunity for the petitioner to lead evidence and advance submissions.