Thackeray vs Shinde: EC says its job is done after deciding the symbol dispute; can’t be made party to the litigation

Last month, the ECI had conferred the Shiv Sena party name and electoral symbol to the Eknath Shinde faction, over the Uddhav Thackeray faction. This order has been challenged by the Thackeray faction before the Supreme Court.

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IN an affidavit filed in the Supreme Court, the Election Commission of India (ECI) has submitted that it has become functus officio in the dispute between the current iteration of the Shiv Sena, led by current Maharashtra Chief Minister Eknath S. Shinde, and the Shiv Sena (Uddhav Balasaheb Thackeray), led by former Maharashtra Chief Minister and former Shiv Sena president Uddhav B. Thackeray. ECI contends that it became functus officio after passing its order on February 17 conferring the 'Shiv Sena' party name and its bow and arrow symbol to the Shinde faction of the Shiv Sena. This faction was named Balasahebanchi Shiv Sena prior to the decision of the ECI.

The stance of the ECI has come in response to the Supreme Court's notice to the commission on February 22 in a petition filed by former chief minister of Maharashtra Uddhav Thackeray challenging the ECI's February 17 order.

The ECI contends that since it passed the order in a quasi-judicial capacity and not in an administrative capacity, as per Paragraph 15 of the ECI's Symbols Order, 1968, it has become functus officio.

The doctrine of functus officio (that is, having performed one's office) holds that once an arbitrator renders a decision regarding the issues submitted, they lack any power to re-examine that decision.

The ECI has also argued that where an order passed by a quasi-judicial body is under challenge before an appellate court, such a body need not be arrayed as a party to the appeal.

"The Answering Respondent humbly submits that since the impugned order was passed not in an administrative capacity of the Commission but in a quasi-judicial capacity under Paragraph 15 of the Symbols Order, it has no contentions to make on merits of the case as the impugned order is a well-reasoned order and covers all the issues raised by the Petitioner. The Election Commission, thus, has become a functus officio for the present case since it has already discharged its duty to adjudicate the petition filed under Paragraph 15 of the Symbols Order after passing of the impugned order," the affidavit reads.

It adds that it is for Thackeray and Shinde to make submissions on merits.

Thackeray, in his petition, argues that the ECI erred in holding that there was a split in the Shiv Sena. The ECI held that there was a split not only in the legislative wing of the Shiv Sena, but also in the political party itself.

Thackeray, however, contends that a bare reading of the petition filed by Shinde to the ECI, under paragraph 15 of the ECI's Symbols Order, would show that there was no such averment made in the petition whatsoever and the only averment was made in regard to a split in the legislative party.

"In the absence of any pleadings and evidence that there was a split in a political party, the finding of the ECI is completely erroneous on this ground. The further question which arises is in view of the fact that para 3 of the Tenth Schedule was deleted [with effect from] 2003 and the perpetrators of a split were subjected to disqualification, the ECI could not have recognised and given effect and validated a split by virtue of its jurisdiction under para 15 of the Symbols Order," the petition argues.

The petition also argues that ECI did not appreciate that the Shiv Sena (Uddhav Balasaheb Thackeray) enjoys overwhelming support in the rank and file of the Shiv Sena party.

"The Petitioner has an overwhelming majority in the Pratinidhi Sabha which is the apex representative body representing the wishes of the Primary members and other stakeholders of the party. The Pratinidhi Sabha is the apex body recognized under Article VIII of the Party Constitution. The Petitioner enjoys the support of 160 members out of approximately 200 odd members in the Pratinidhi Sabha. The petitioner had demonstrated before the ECI an overwhelming majority by filing Affidavits of the members of the organizational wing of the party," the petition avers.

The petition asserts that the ECI acted in a manner undermining its constitutional status, adding that it disregarded the Party Constitution of 2018 on the ground that such a Constitution is undemocratic and that it was not communicated to the commission.

These observations, the petitioner submits, are totally erroneous as the amendments in the Constitution were categorically communicated to the commission in 2018 itself.

According to its 2018 Constitution, the Shiv Sena chief will be the highest authority in the party who can withhold, remove or annul appointments to any post and whose decisions on all party matters will be final.

Thackeray argued that without even giving an opportunity or even pointing out to him that the ECI had doubts over the existence of the 2018 amendment, the ECI had cast doubt on the existence of the 2018 Constitution.

"It is also relevant to point out that the Respondent was also the beneficiary under the 2018 amendment and as such, no grievance could be raised by the Respondent on the validity of the 2018 amendment. Furthermore, the validity, efficacy and legality of the 2018 amendment were not at all in the challenge in the proceedings before the ECI and no finding could have been rendered in this regard," Thackeray had submitted.

It was also argued that legislative majority alone, in this case, could not be the basis for passing of the order under challenge by the ECI. Firstly, it was pointed out that certain Shiv Sena legislators are facing disqualification proceedings under the Tenth Schedule of the Constitution, which were initiated much before the filing of the petition before the ECI by Shinde.

"It is well settled that the disqualification relates back to the date when it occurred. It is the Petitioner's case that the Respondent(s) on account of their action has relinquished the membership of Shiv Sena on 21/22.06.2022 and the disqualification will relate back to that date. In such an event disqualification, the substratum of the impugned order no longer remains. Thus, the ECI erred in relying upon the strength of legislators who are under the cloud of disqualification," the petition reads.

Besides, it was argued by Thackerey that the ECI had failed to consider that his faction of the party enjoys a majority in the Legislative Council (12 out of 12 Shiv Sena members) and Rajya Sabha (three out of three Shiv Sena members).

"It is submitted that in a case of this kind where there is a conflict even in the legislative majority i.e., Lok Sabha on one hand and Rajya Sabha on the other as well as Legislative Assembly and Legislative Council, more particularly, having regard to the fact that there is a possibility of the alleged members losing their right of membership, the legislative majority alone is not a safe guide to determine as to who holds the majority for the purposes of adjudicating a petition under Para 15 of the Symbols Order," the plea states.