THE SUPREME COURT ON WEDNESDAY deferred till November 12 the hearing on Uddhav Thackeray’s petition challenging the Election Commission of India’s February 17, 2023, decision recognising Eknath Shinde’s faction as the real Shiv Sena and allotting it the party’s reserved ‘Bow and Arrow’ symbol.
A Bench of Justices Surya Kant, Ujjal Bhuyan, and Nongmeikapam Kotiswar Singh posted the matter for hearing on November 12, after Senior Advocate Kapil Sibal appearing for Thackeray sought an early hearing citing the local bodies election in January next year.
“There is urgency, My Lords. Local elections are due in January. Please hear it at the earliest,” he urged.
“We will take it up on November 12”, Justice Kant said.
The controversy stems from the Election Commission’s order of February 17, 2023, which recognised Eknath Shinde’s group as the “real Shiv Sena” and allotted it the party’s reserved election symbol - ‘Bow and Arrow.’
In the same order, the Commission permitted the Uddhav faction to contest under the name “Shiv Sena (Uddhav Balasaheb Thackeray)” using a temporary symbol of a ‘Flaming Torch.’ The arrangement was made in view of the Maharashtra Assembly bye-elections scheduled for February 26, 2023.
The Thackeray camp has consistently maintained that the Election Commission overstepped its role as a neutral arbiter by basing its decision purely on legislative strength, rather than the party’s organisational structure or ideological continuity.
Thackeray’s plea argues that the poll panel failed to uphold the spirit of the Election Symbols (Reservation and Allotment) Order, 1968, which mandates impartial adjudication in intra-party disputes.
The Thackeray camp has consistently maintained that the Election Commission overstepped its role as a neutral arbiter by basing its decision purely on legislative strength.
In its affidavit before the Supreme Court, the Election Commission of India (ECI) defended its decision to recognise Eknath Shinde’s faction as the real Shiv Sena and allot it the party’s reserved symbol, the “Bow and Arrow.” The ECI maintained that its February 17, 2023, order was a well-reasoned, quasi-judicial determination made under the Election Symbols (Reservation and Allotment) Order, 1968, after considering all issues raised by the Uddhav Thackeray faction.
The Commission clarified that the decision was not administrative but quasi-judicial in nature, and once order was pronounced, the Commission became functus officio—meaning its role in adjudicating the dispute had concluded. The affidavit also cited past court rulings holding that quasi-judicial bodies need not be made parties in appeals against their orders.
In his challenge before the Supreme Court, Uddhav Thackeray has argued that the ECI’s ruling was flawed and driven solely by the legislative majority enjoyed by the Shinde camp, which, he said, cannot determine the “real” party under law. Thackeray contended that his faction retains majority support in the Legislative Council and Rajya Sabha and that the ECI erred in assuming a party split without evidence.
The petition asserts that the ECI’s conclusion—that the Shinde group represented the authentic Shiv Sena—was premature since questions over legislative legitimacy are still pending before the Constitution Bench. He alleged that the Commission’s findings ignored the constitutional and organisational structure of the party, relying instead on numbers in the Assembly to decide an issue of political identity.
In its May 11, 2023 judgment, the Supreme Court’s five-judge Constitution Bench held that it is the political party—not the legislature party—that has the authority to appoint the Whip and the Leader of the Party in the legislature. Directions on how members should vote or abstain must also come from the political party itself. The Court ruled that the Maharashtra Speaker’s July 3, 2022 communication recognising the Shinde faction’s nominees as Whip and Leader was contrary to law, and directed the Speaker to conduct an inquiry and recognise those duly authorised by the Shiv Sena’s political organisation, in line with the party’s constitution.
The Constitution Bench further clarified that after the deletion of Paragraph 3 of the Tenth Schedule, legislators can no longer claim “split” as a defence in disqualification proceedings, and the Speaker must determine which faction constitutes the “real political party” when rival claims arise.
On the political crisis itself, the Court said that Governor Bhagat Singh Koshyari (since demitted office) had no objective material to ask then Chief Minister Uddhav Thackeray to prove his majority, making his decision legally unjustified. However, since Thackeray resigned without facing the floor test, the Court declined to reinstate his government, holding that the Governor was nonetheless justified in inviting Eknath Shinde to form the next government.