The crux of Thackeray's petition is that the 'test of the legislative majority' adopted by the Election Commission of India in its order last week was not applicable in view of the fact that disqualification proceedings were pending against legislators of the Shinde faction..—–.FORMER Chief Minister of Maharashtra Uddhav B. Thackeray has petitioned the Supreme Court challenging the order passed by the Election Commission of India (ECI) on February 17 whereby it allotted the 'Shiv Sena' party name and its bow and arrow symbol to the Balasahebanchi Shiv Sena faction led by current Chief Minister Eknath Shinde..Senior advocate Dr. Abhishek Manu Singhvi sought to mention the petition this morning before a bench headed by the Chief Justice of India, who declined to list it tomorrow, reasoning that he would not permit the unscheduled mentioning of the matter. He thus advised Dr. Singhvi to mention the matter on Tuesday in sequence..The petition, at the outset, makes a point that the challenge to the ECI's order has a direct bearing on the matter of Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors. which is being heard by a Constitution bench of the court pertaining to the recent constitutional crisis in Maharashtra..It argues that the 'test of the legislative majority' adopted by the ECI could not have applied at all in view of the fact that disqualification proceedings were pending against legislators of the Shinde faction.."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," the petition submits..Assailing the ECI's decision, the 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, 1968 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 w.e.f 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 Thackeray faction — Shiv Sena (Uddhav Balasaheb Thackeray) — enjoys overwhelming support in the rank and file of the 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 the 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 argues 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 casted 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," the petitioner submits..It argues that the legislative majority alone, in this case, could not be the basis for passing of the order under challenge by the ECI. Firstly, it points out that there are legislators who are facing disqualification proceedings under the Tenth Schedule of the Constitution, which were initiated much prior to 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 is argued by Thackerey that the ECI 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 (3 out of 3 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.
