Eknath Shinde faction argues in Supreme Court ‘legislative majority’ still a factor to decide ‘real’ Shiv Sena
Before the Supreme Court, one faction of the split Shiv Sena has argued that "legislative majority" — the numerical strength a group commands among elected MLAs — remains a relevant factor in determining which faction is the "real" political party, for purposes of disqualification proceedings under the Tenth Schedule.
The argument draws on the Constitution Bench's 2023 judgment in the Subhash Desai case, contending that the judgment did not conclusively rule out legislative majority as a relevant consideration.
The dispute traces back to the 2022 split within the Shiv Sena, competing claims to the party's identity and symbol, and the subsequent disqualification petitions filed under the Tenth Schedule against MLAs of both factions.
The matter remains pending before the Supreme Court, which is examining how much weight legislative-party strength should carry against the organisational structure of the political party in resolving such disputes.
The Tenth Schedule (Anti-Defection Law)
The Tenth Schedule was inserted into the Constitution by the 52nd Constitutional Amendment Act, 1985, to curb political defections motivated by the lure of office or other considerations. It lays down the grounds on which an elected member of a House can be disqualified for defection and vests the power to decide such disqualification in the Speaker (or Chairman, for the Upper House).
The Shiv Sena dispute is fundamentally a Tenth Schedule disqualification proceeding — whether MLAs of one faction defected from the "real" Shiv Sena by supporting a rival group is precisely the kind of determination the Tenth Schedule assigns to the Speaker, subject to the constitutional test of what constitutes the authentic party.
Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)
This is the Constitution Bench judgment (2023 INSC 516) that arose from the 2022 Shiv Sena split, addressing the Governor's power to order a floor test, the Speaker's role in disqualification proceedings, and the criteria for recognising a party's "real" faction for symbol and Tenth Schedule purposes.
Key Details
- The five-judge Bench held that the political party's organisational structure and its decision-making bodies, not mere numerical strength in the legislature, generally have primacy in determining control over the party — the "control of the political party subsists over the legislature party."
- The judgment also held that the Governor of Maharashtra was not justified in calling for a floor test in the circumstances of that case, since there was no material to show that the then Chief Minister had lost the confidence of the House on the floor.
- The Court referred the specific question of which faction constituted the "real" Shiv Sena, for purposes of the pending disqualification petitions, back to the Speaker of the Maharashtra Legislative Assembly to decide.
- The Speaker's subsequent decision, recognising one faction as the "real" party partly by reference to legislative and organisational majority, is what is now under challenge in the Supreme Court, prompting the present arguments on whether legislative majority is a legitimate factor at all.
The current arguments before the Supreme Court concern precisely how far the "organisational primacy" principle from Subhash Desai forecloses reliance on legislative-party numbers — this is the live constitutional question the faction's counsel are now contesting.
Election Symbols (Reservation and Allotment) Order, 1968
This is a statutory order issued by the Election Commission of India under its powers of superintendence over elections (Article 324) and the Representation of the People Act, 1951, governing recognition of political parties and allotment/freezing of election symbols in the event of a split.
The Election Symbols Order proceedings before the ECI and the Tenth Schedule disqualification proceedings before the Speaker/Supreme Court run on parallel but separate tracks; the current Supreme Court hearing concerns the latter, but the same "real party" question links both.
- Tenth Schedule inserted by the 52nd Amendment Act, 1985; "split" exception removed by the 91st Amendment Act, 2003.
- Kihoto Hollohan v. Zachillhu (1992): upheld the Speaker's adjudicatory role under the Tenth Schedule, subject to limited judicial review.
- Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 INSC 516: five-judge Constitution Bench; held political-party organisational control generally prevails over legislative-party numbers; referred the "real party" question to the Speaker.
- Election Symbols (Reservation and Allotment) Order, 1968, Paragraph 15: ECI's power to resolve symbol disputes on a party split.
- Article 191(2): applies Tenth Schedule disqualification grounds to members of state legislatures.