The Delhi high court on Tuesday dismissed a petition by former Maharashtra chief minister Uddhav Thackeray against the Election Commission's interim order freezing Shiv Sena's name and the party's election symbol.
Justice Sanjeev Narula asked the EC to expeditiously decide the issue pertaining to the use of the party symbol -- 'bow and arrow', saying it is in the interest of the two Shiv Sena factions as well as the general public.
”The present petition is dismissed,” the court ruled.
”In the opinion of this court, it would be in the interest of both parties and of the general public that the proceedings are concluded expeditiously. Accordingly, EC is directed to proceed to adjudicate the dispute as expeditiously as possible,” stated the court while noting that the Supreme Court has not interdicted the EC proceedings in the present case.
Justice Narula said the reasons behind the verdict will be given in a detailed order.
Soon after the court directive, the Election Commission announced that it had asked the Shiv Sena factions led by Shinde and Thackeray to submit fresh documents to back their claim to the party's name and its symbol by November 23.
In a letter to both the factions on November 12, the poll panel also asked them to exchange the documents, submitted to the poll panel, with each other.
The EC said if nothing is received, then it would be assumed that they have nothing fresh to say on the issue and it would proceed in the case, including fixing the date of personal hearing.
In an interim order in October, the commission had barred the two factions from using the party name or its 'bow and arrow' symbol.
Later, it had allotted 'ShivSena - Uddhav Balasaheb Thackeray' as the party name for the Thackeray faction, and 'Balasahebanchi Shiv Sena' (Balasaheb's Shiv Sena) as the name for the Eknath Shinde group of the party.
The EC had said the interim order will continue "till the final determination of the dispute".
Earlier this year, Eknath Shinde, the current Maharashtra CM, had raised a banner of revolt against Thackeray, accusing him of entering into an "unnatural alliance" with the Congress and the Nationalist Congress Party. Over 40 of the Shiv Sena's 55 MLAs had supported Shinde, forcing Thackeray's resignation as the chief minister.
In response to Thackeray's challenge to the order, EC lawyer Sidhant Kumar told the court that the poll panel has dealt with the matter with due expedition and will continue to do so, and has asked for ”everything to be completed by November 23”.
He added there was no breach of fair play and it may not be appropriate for the court to intervene and set a precedent for future cases.
”We will, as expeditiously as possible, proceed and finish the hearing. That would be the endeavour in every symbol case. It may not be appropriate in these circumstances, when there is no fault of the EC or there is undue delay, that the court may intervene and set a precedent for other matters to follow,” Kumar said.
The commission will hear the objections from both sides and decide the matter, he added.
Appearing for the petitioner, senior advocate Kapil Sibal argued before the court that the EC could not have passed the interim order on an assumption that there were two factions of the Shiv Sena and that Shinde was part of the political party.
”Commission cannot possibly assume that there are two factions of the same party because the constitution bench (of the Supreme Court) is yet to consider whether legislators are deemed to be disqualified from the date they left the party.... EC cannot assume that he (Shinde) is part of Shiv Sena,” he said.
It was also claimed that an order freezing the election symbol cannot be passed by the EC without giving the party concerned an opportunity to make submissions.
Senior lawyer Devdatt Kamat, also appearing for Thackeray, claimed lack of procedural fairness as the interim order was passed in the absence of a prima facie case in favour of the group led by Shinde.
”All 12 MLCs are with me. All 3 (Rajya Sabha) MPs are with me.....The EC has to record a prima facie satisfaction that they (Shinde) have made out a case. That endeavour has not been done apart from the fact of hearing (not being given),” he said.
The EC's lawyer countered his contentions, saying malicious allegations against a constitutional body must be deprecated by the court.
Senior advocates Neeraj Kishan Kaul and Rajiv Nayar defended the EC order on behalf of Shinde.
Kaul argued that the EC, a constitutional authority, can decide a dispute in the manner it deems fit and the freezing order is ”purely an interim arrangement” and the matter is yet to be decided finally.
The court's intervention at this stage will be a ”travesty of justice” and set a precedent that is ”not healthy for democracy”, he said.
Nayar said the petitioner, ”who submitted to the jurisdiction of the commission”, ”does not want any resolution” as he repeatedly sought to defer the EC proceedings and the poll only balanced the interests of the groups by freezing the party symbol for the time being.
”I have prima facie majority in MLAs and MPs....They don't want an expedition (in EC proceedings) because they know they will be without the symbol and I will get the symbol,” Nayar said.
Earlier, the senior counsel for Shinde had contended the Supreme Court has already refused to stay the EC proceedings and that the scope of judicial review against the Election Commission's order was restricted as there is a presumption of validity unless one shows gross arbitrariness or serious mala fide.
He had also said there was no need for the court's interference after the conclusion of the Andheri East assembly by-poll and now the ”ball is in the Election Commission's court”.
The petition alleged the EC displayed undue haste in passing the order without affording an opportunity to Thackeray to be heard despite an application by him requesting for an oral hearing.
Thackeray has argued in his petition that the freezing order was actuated by malice in law, is erroneous, and the EC proceedings should be conducted in accordance with the principles of natural justice by providing opportunity to the petitioner to lead evidence and advance submissions.
