Hearing a petition by former Maharashtra chief minister Uddhav Thackeray against the Election Commission's interim order freezing Shiv Sena's name and election symbol, the Delhi high court on Monday asked why it should not wait for the final decision of the poll panel on the dispute between the party factions.
Justice Sanjeev Narula observed that the court would ask the EC to decide the issue of allotting the 'bow and arrow' symbol in a time-bound manner and both factions can put their contention before the election panel.
Advocate Sidhant Kumar, appearing for Election Commission, said that it was a constitutional body and a specific timeline to arrive at a decision may not be directed.
Senior counsel appearing for the rival faction leader Eknath Shinde claimed that there was no need for the high court's interference at this stage when the ”(interim) direction has worked itself out” after the conclusion of the Andheri East assembly bye-poll and now the ”ball is in the Election Commission's court”.
Earlier this year, Shinde had raised a banner of revolt against Thackeray, accusing him of entering into an "unnatural alliance" with the Congress and Nationalist Congress Party. Over 40 of the Shiv Sena's 55 MLAs had supported Shinde, forcing the resignation of Thackeray from the post of Maharashtra chief minister.
The Election Commission (EC), in its October 8 interim order, had barred the Shiv Sena factions led by Thackeray and Shinde from using the party name and election symbol in the Andheri East assembly bye-poll.
Justice Narula on Monday observed that the court would ask the EC to decide the issue of allotting the 'bow and arrow' symbol to one of the factions in a time-bound manner while noting that the two competing groups were given separate election symbols by the EC to contest the bye-polls.
”That (EC) order was for the purpose of the bye-election. Is there a final adjudication? No. The interim order has run its life out. When the bye-elections have already taken place, why should the court not await the final view of the EC?” the judge observed.
”They (Shinde) have approached the EC. Elections have been conducted. Only question is that you are without the symbol and you say you are the political party. I took note of that fact... the only answer then is please decide it expeditiously,” he further said.
The court observed that the petitioner can raise all contentions before the EC and challenge the final order if the need arises.
The court listed the case for further hearing on November 15 and asked the parties to file a brief note of submissions.
Senior advocate Kapil Sibal, appearing for the petitioner, contended that the EC could not be permitted to proceed on the assumption that Shinde has not been disqualified when the issue is pending before the Supreme Court.
It was claimed on behalf of the petitioner that the EC order was passed without hearing them, in the absence of a prima facie case in favour of the Shinde faction.
Sibal contended that the case raised substantive issues and the EC should first rule on the issue of maintainability of Shinde's claim before passing a final order.
”Status quo has been altered. Expeditious disposal will mean he (EC) will decide the matter in their favour. He has not even taken into consideration my objections,” Sibal said.
Senior counsel Devdatt Kamat, also appearing for the petitioner, claimed that the petitioner's political activity has come to a standstill and day-to-day prejudice was being caused due to the freezing order.
”We have filed over 15 lakh affidavits of organisational and primary members. They have filed about 1.5 lakh-2 lakh. All 40 (legislators in Shinde's favour) are under a cloud. They have incurred disqualification,” he said.
”I have run this party for the last 30-odd years. Unless the ECI is satisfied that they have made out a prima facie case, it cannot freeze the election. I can't today use the name and symbol of my father,” Kamat contended.
Senior advocate Neeraj Kishan Kaul, appearing for Shinde, contended that the petitioner has already argued the same issues before the Supreme Court which refused to stay the EC proceedings and the scope of judicial review against the EC order was restricted as there is a presumption of validity unless one shows gross arbitrariness or serious mala fide.
Kaul also opposed the petitioner's claim that there was a violation of natural justice, saying ”despite repeated opportunities since July, you (petitioner) did not file (the) documents”.
”The EC in its wisdom passes an order not giving the symbol to either but giving them an independent symbol, of which choices were given by them,” the senior advocate said.
Senior advocate Rajiv Nayar, also appearing for Shinde, added the EC order was passed in view of the bye-polls and that ”direction has worked itself out”.
”The EC addressed a communication -- that all papers should be completed by November 23 because the Supreme Court said there is no stay and EC will decide. The ball is in EC court,” he added.
Thackeray had approached the high court last month seeking quashing of the EC order freezing the party name Shiv Sena and its election symbol 'bow and arrow'.
The petition has said that in this case, without affording an opportunity to be heard despite an application of the petitioner requesting an oral hearing, EC displayed undue haste and passed the order freezing the symbol of 'bow and arrow' of the political party Shiv Sena led by Uddhav Thackeray.
The symbol is intrinsically identified with the party, having been used by it since the inception of the party in 1966.
It is pertinent to note here that the said symbol was developed, designed and copyrighted by Late Balasaheb Thackeray, the plea said.
"The freezing of the symbol is actuated by malice in law and is erroneous as the preliminary reply filed by the petitioner before EC clearly shows that the petition there was not maintainable at the behest of Shinde," the plea by Thackeray said.
