शिवसेना विवाद में तटस्थ प्रतीक: सुप्रीम कोर्ट ने इलेक्शन कमीशन के निर्णय पर सवाल उठाए

Shiv Sena Row | Why Didn't ECI Allot Neutral Symbol To Eknath Shinde Side? Supreme Court

Amisha Shrivastava

16 Sept 2026 9:11 PM IST

The legislative majority test may not be relevant when disqualification petitions are pending, the Court commented.

In the Shiv Sena case, the Supreme Court today questioned why the Election Commission of India, if it found limitations in the competing tests for determining which faction represented the Shiv Sena, did not adopt a neutral course of allowing both factions to contest on their own strength instead of giving one group the advantage of the existing party name and symbol.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing the challenge made by Uddhav Thackeray to the Election Commission's decision recognising the Eknath Shinde faction as the real Shiv Sena.

During the hearing, Senior Advocate Neeraj Kishan Kaul for the Shinde faction, submitted that the ECI did not assume jurisdiction under Paragraph 15 of the Election Symbols Order merely because of the 2022 split in the party's legislature wing and had considered other material concerning the political organisation before deciding which faction represented the party.

Kaul submitted that the ECI examined the party Constitution, its aims and objectives and the organisational-majority test before concluding that, in the peculiar circumstances of the Shiv Sena dispute, legislative strength was the only reliable test available.

Justice Bagchi noted Kaul's submission that the organisational test had difficulties because the party's organisational structure had an overwhelming number of nominated members, while the elected representatives were divided and facing disqualification proceedings. A referendum among the party's grassroots cadre, he noted, was also practically difficult given the large number of members.

“This organization set up with nominated members being in overwhelming majority does not support party aspiration or cadre aspirations. And the cadres being so numerous, impossible to get a referendum and the elected representatives being split and subject to inter se insinuations of disqualification. Then all the three tests have their inbuilt restrictionss,” Justice Bagchi observed.

He observed that the Court, while exercising judicial review, was not sitting in the place of the Election Commission to choose one test over another. The question was whether the Commission had exhausted the options available to it.

“Both fight on your own strength, not on Balasaheb's…It is in the wide powers of the Commission, which is an expert body in the arena of representative party democracy, to understand where and in what manner they are going to allocate symbol. We are in judicial review, where we don't sit in the chair of the Election Commission. So, what we have to see is whether the options available on analysis of the legal premises were exhausted by the Commission, and there is our query to you that if all the tests stand vitiated, there was always the option to go to the fourth available quarter that don't give an advantage to either of these groups. Let them select their own symbols and fight on their own scheme and strength,” he added.

Kaul said that he would deal with the issue while taking the Court through the impugned Election Commission order.

However, he maintained that legislative majority was a valid test and in the circumstances of the Shiv Sena dispute, it was the only option left after the Commission considered the other available tests.

He highlighted that the ECI found that the other available tests could not reliably resolve the dispute. The aims-and-objectives test could not distinguish the two factions because both claimed to follow the same objectives. The organisational-majority test, according to the ECI, was also unreliable because the 2018 organisational structure was dominated by nominated members and did not adequately represent the party's grassroots cadre.

Justice Bagchi questioned whether legislative strength, although relevant, could safely be treated as determinative where disqualification proceedings were pending.

“The legislative test, though a relevant test, will not always be the determinative test or in a given situation where disqualifications are being adjudicated, will be a very safe test,” he observed.

Kaul responded that he was not arguing that legislative majority should ordinarily be the only test. Rather, his submission was that the peculiar facts of the Shiv Sena dispute left the ECI with legislative majority as the remaining workable test after examining the alternatives.

“In the given facts of this case, the legislative majority test was the only option left. I'm not for a minute suggesting that ordinarily it should be the only test. Ordinarily there are three tests which have been enumerated. They must go hand in hand but if a peculiar situation in the facts of the case emerges, then your lordships will have to test whether this was a route which the Election Commission ought to have taken or not,” he submitted.

He also maintained that the ECI's approach had to be examined in the context of its powers under Paragraph 15 of the Election Symbols Order and the particular factual circumstances before it.

The arguments will continue tomorrow.

Earlier, Senior Advocates Kapil Sibal and Devadatt Kamat had completed their arguments for the UBT side.

Case: Sunil Prabhu v. Eknath Shinde, SLP(C) Nos. 1644-1662/2024 and connected case

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