Election Commission of India: The coram comprising of Rajiv Kumar (Chief Election Commissioner), Anup Chandra Pandey (Election Commissioner) and Arun Goel (Election Commissioner) held that party name ‘Shiv Sena’ and the party Symbol ‘Bow and Arrow’ was to be retained by the Eknath Shinde faction and the name of ‘Balasahebanchi Shiv Sena’ and symbol of ‘two swords and shield’ which was allotted to the Eknath Shinde faction itself by way of an interim order was frozen with immediate effect. The same decision was challenged by the Uddhav Thackeray led group before the Supreme Court on 20-02-2023.

Factual Matrix

Shiv Sena being a recognized State party in Maharashtra with the symbol ‘Bow and Arrow’, amended its constitution in the year 2018 without putting the same on record of the Commission as required under Section 29-A of the Representation of the People Act, 1951.

Subsequently, the Commission was intimated by Anil Desai, Member of Parliament about alleged anti-party activities carried by some of the party Member of Legislative Assemblies (‘MLA’) under the leadership of Eknath Shinde who had been removed from their respective positions.

In July 2022, a petition was filed by the Eknath Shinde faction under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 (‘Symbols Order’) stating that he was Shiv Sena Mukhya Neta and the senior leader of Shiv Sena Legislature Party (‘SSLP’) and the serving Chief Minister (‘CM’) of Maharashtra and Uddhav Thackeray was the Shiv Sena Pramukh. He had contended that there had been dissatisfaction on account of corruption in Maha Vikas Aghadi Government (‘MVA’).

It was alleged that by way of an unauthorized meeting attended by 24/55 members of SSLP in June 2022, Uddhav Thackeray passed a resolution to remove Eknath Shinde from the position of leader of SSLP and appointed Ajay Choudhary as the new leader. However, 34 MLAs of SSLP reaffirmed Eknath Shinde as the leader of SSLP on the same day and declared the appointment of Ajay Choudhary illegal and void.

It was further alleged that in June 2022, another unauthorized meeting was held by Sunil Prabhu which was attended by 14/55 MLAs of SSLP which resolved to disqualify those members who did not attend the said meeting under the Maharashtra Legislative Assembly (Disqualification on ground of Defection) Rules, 1986 (‘Defection Rules 1986’) read with 10th Schedule of the Constitution. Consequently, 16 members of SSLP who had received the notices for disqualification had filed a writ before the Supreme Court challenging the disqualification proceedings.

In June 2022, the Governor of Maharashtra directed to convene a special session to hold a trust vote against the then CM which was challenged by Sunil Prabhu before the Supreme Court seeking stay of the order passed by the Governor. However, the Supreme Court in June 2022 refused to grant the prayer for want of a valid ground. On the very same day, Uddhav Thackeray resigned from the post of CM and soon after Eknath Shinde was sworn in as the CM of the State. Subhash Desai challenged the direction of the Governor for inviting Eknath Shinde to form the government before the Supreme Court.

In July 2022, Eknath Shinde was appointed as the ‘Mukhya Neta’ of Shiv Sena which was also affirmed by the Rashtriya Karyakarini of the party.

Evidently there was a split in the Shiv Sena party with one group being led by Eknath Shinde and the other led by Uddhav Thackeray wherein leaders of both factions had disqualified members of the other group.

The Commission was therefore required to apply the ‘Test of Majority’ in the legislative and organizational wings of the party and allot the Shiv Sena party symbol ‘Bow and Arrow’ to the appropriate party.

In October 2022, the Commission announced bye-elections to fill various vacancies in the legislative assemblies across different states following which Eknath Shinde prayed to urgently hear and dispose of the petitions filed by him and allot the ‘Bow and Arrow’ symbol to his group. The Commission after considering the facts of the case, passed an interim order in October 2022 freezing the symbol of ‘Bow and Arrow’ reserved for Shiv Sena and allotted different names and symbols to both the groups till the pendency of the case.


a) Whether the petition filed by Eknath Shinde maintainable under paragraph 15 of the Symbols Order in view of the pending disqualification proceedings?

b) Whether a split occur in the Shiv Sena party?

c) If yes, then which Test is to be applied for adjudication of the present dispute?

d) Which faction is entitled to use the symbol ‘Bow and Arrow’?

Commission’s Analysis

Issue A

The Commission noted that Uddhav Thackeray had raised the issue of maintainability of the petition filed by Eknath Shinde before various judicial forums and prayed for a stay on proceedings before the Commission. However, on each occasion the said contention was rejected by different Courts, and it was held that there shall be no stay on proceedings before the Commision on account of maintainability.

Thus, the Commission was of the view that the issue of maintainability raised by Uddhav Thackeray ought to be rejected.

Issue B

While relying on Samajwadi Party Dispute, Dispute Case No. 01/2017 to decide on the issue whether a split had emerged in the party, the Commission stated that weightage needed to be given to the circumstances that indicated a split such as holding of separate meetings, and declaration of the same as unconstitutional by the other group and conflicting claims of separate leaders as the head of the party.

Thus, the Commission was of the view that a split had not only occurred in the legislative wing of Shiv Sena but in the party itself.

Issue C

The Commission stated its concerns regarding the non-communication of amendment in the Constitution of the party in 2018 and that not being in accordance with the conditions as communicated by the Election Commision in October 1989 inter alia stipulating the statutory requirement under Section 29-A of the Representation of the People Act, 1951 (‘RP Act’). Further it was not even in sync with the clause xviii and xxii of the Guidelines prescribed by the Election Commission in exercise of powers conferred by Article 324 of the Constitution of India and Section 29-A of the RP Act. Therefore, the Commission held that the ‘Test of Party Constitution’ will not come to aid of this Commission in deciding the present case.

Thus, the Commision was of the view that the only test to be applied in determining the present dispute was the ‘Test of Majority’.

Issue D

The Commission perused the Party Constitution of 2018 that was cited by both the groups during arguments and considered the support enjoyed by both the groups at the State legislature as well as in Lok Sabha.

The Commission observed that the group led by Eknath Shinde clearly enjoyed the support in the legislative wing of the party. Even the outcome of the majority test in the legislative wing reflected the qualitative superiority of the ‘majority test’ in favour of Eknath Shinde. While applying the ‘Test of Party Constitution’, the Commission found that the party constitution on which Uddhav Thackeray was placing strong reliance was un-democratic.

Therefore, considering all the facts and circumstances, the Commission exercising its power under Article 324 of the Constitution read with Para 15 and 18 of the Symbols Order, 1968 held that the party name ‘Shiv Sena’ and the party Symbol ‘Bow and Arrow’ to be retained by the Eknath Shinde faction and the name of Balasahebanchi Shiv Sena and symbol of ‘two swords and shield’ which was allotted to the Eknath Shinde faction by way of an interim order was frozen with immediate effect. He was further directed to amend the 2018 Constitution of the party in line with section 29-A of the RP Act and extant guidelines issued by the Commission on registration of political parties’ inter-alia conforming to internal democracy.

The Commission in consequence, allowed the Uddhav Thackeray faction to retain the name of ‘Shiv Sena (Uddhav Balasaheb Thackeray)’ and the symbol of ‘Flaming Torch’ as per the October 2022 interim order.

[Eknath Rao Sambhaji Shinde v. Uddhav ji Thackeray, No. 56/01/Dispute/PPS-II/2022/Vol-IV, decided on 17-02-2023]

Advocates who appeared in this case :

For the Petitioner- Senior Advocate Mahesh Jethmalani, Senior Advocate Maninder Singh, Senior Advocate Siddharth Bhatnagar, Senior Advocate Malvika Trivedi, Advocate Chirag Shah, Advocate Utsav Trivedi, Advocate Ravi Sharma, Advocate Mughda Pande, Advocate Himanshu Sachdeva, Advocate Malini Roy, Advocate Chaitali Jugran, Advocate Piyush Tiwari, Advocate Ajay Awasthi, Advocate Wedo Khalo, Advocate Nihar Thackeray, Advocate Sujal Gupta, Advocate Prabhas Bajaj, Advocate Navneet R., Advocate Aditya Sighra;

For the Respondent- Senior Advocate Kapil Sibal, Senior Advocate Devadatt Kamat, Advocate Amit Anand Tiwari, Advocate Vivek Singh, Advocate Devyani Gupta, Advocate Aparajita Jamwal, Advocate Nizam Pasha, Advocate Sabaariswh Subramanian, Advocate Javedur Rahman, Advocate Harsha Pandey, Advocate Rajesh Imandaar, Advocate Revanta Solanki, Advocate Sunny Jain, Advocate Rohit Sharma.

Editorial Note: On 20-02-2023, the Uddhav Thackeray faction approached the Supreme Court challenging the decision of the Election Commision of India which recognised the Eknath Shinde led group as the official Shiv Sena granting them permission to use the name ‘Shiv Sena ’ and the symbol ‘Bow and Arrow’ for their party.


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