THE Supreme Court on Tuesday resumed final hearing on pleas challenging the Maharashtra Speaker’s refusal to disqualify MLAs of the Eknath Shinde-led camp of the Shiv Sena, with the faction defending the Election Commission’s decision to recognise it as the “real” Shiv Sena. A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana is also hearing a challenge by the Uddhav Thackeray-led faction to the Election Commission’s February 17, 2023, order allotting the Shiv Sena name and its ‘bow-andarrow’ election symbol to the Shinde camp. Senior advocate Neeraj Kishan Kaul, appearing for the Shindeled faction, said the Election Commission was within its jurisdiction under Article 324 of the Constitution to examine the democratic character of a political party’s constitution and organisational structure while determining which faction represented the real party. “Your Lordships must see the entire record. The question is whether the constitution was with the Election Commission,” Kaul said. The senior lawyer said the constitution relied upon by the Thackeray faction had not been registered with the poll panel, whereas the constitution submitted in 1999 followed detailed correspondence between the poll authority and the party.

 

He said the Election Commission was not deciding which amendments should or should not be made to a party constitution, but was examining whether the organisational structure reflected the will of the cadres. “If there are ad-hoc appointments and unelected appointees, the organisational structure does not necessarily reflect the will of the cadre,” he said. The senior advocate maintained that the poll panel had, for decades, corresponded with political parties about democratic functioning and their constitutions. Such scrutiny fell within the poll panel’s expansive powers under Article 324 of the Indian Constitution, he said. “The EC is not striking down internal elections or deciding who was rightly or wrongly elected in the manner of a civil court,” Kaul said, adding that the Commission could examine the party constitution, organisational structure and legislative wing while applying the appropriate test to determine the real party. He also argued that the existence of a party constitution cannot prevent the poll panel from examining the organisational structure, particularly where large sections of the organisation were governed through ad hoc appointments.