SC rejects Thackeray's request for early hearing for using Shiv Sena symbol
A bench of justices MM Sundresh and K Vinod Chandran directed the matter to be listed on July 14, noting the election was yet to be notified. 'What is the urgency now? Even if it is notified, you can seek directions in the pending matter.'
Shiv Sena (UBT) moved the application in a pending petition challenging the Election Commission of India (ECI)'s February 17, 2023, order recognising the Eknath Shinde-led faction as the real Shiv Sena.
Senior advocate Devadatt Kamat, appearing for Thackeray, said the application needs to be heard urgently as the election to 27 municipal corporations, 232 municipal councils, and 125 nagar panchayats will be notified soon.
He referred to the May 6 Supreme Court direction to the Maharashtra government to complete the election within four months.
The local polls have not been held since 2022 due to a challenge to a state law granting 27% Other Backward Classes (OBC) reservation. The opponents of the law argued it failed the 2021 Supreme Court-mandated triple test, requiring the setting up of a commission to provide empirical data on OBC backwardness, fixing the quantum of reservation in each local body, and ensuring the total reservation does not exceed the 50% cap. The Supreme Court laid down the cap in the 1992 Indira Sawhney case.
On May 6, the Supreme Court cited the pending challenge to the law. It said the reservation shall be provided to the OBC communities as per the law as it existed before the 2022 report of the Banthia Commission. The new law was passed based on the report.
Kamat argued that once the elections are notified, the symbols cannot be allotted. He added that either the February 17, 2023, ECI order should be set aside or the matter should be heard on an urgent basis.
Kamat referred to a similar symbol dispute related to the Nationalist Congress Party (NCP). The Supreme Court directed the Ajit Pawar-led NCP faction to issue a public notice in the newspapers saying that the allocation of the clock symbol to it is sub judice. It said that the symbol will be used subject to the outcome of the proceedings before the court. The court added that the disclaimer should be in every template, advertisement, audio, or video clip issued on behalf of the Ajit Pawar faction.
Kamat requested the court to pass similar directions in the Shiv Sena symbol dispute matter. He added a large number of voters, especially the working class, rural masses, and marginalised communities, identified Shiv Sena and its symbol, the saffron flag, and the emblem of a roaring tiger with the name of the party inscribed below, with the founder Balasaheb Thackeray.
Kamat said the Shinde faction was campaigning under the name of Shiv Sena and the bow and arrow symbol. He added that this affects the voting pattern. 'This is causing grave prejudice to the petitioner who is rightfully entitled to use the said name and symbol, and to the general public at large who are being misled into believing that the respondents represent the real Shiv Sena.'
The Shinde faction's lawyer objected to the application, saying the court rejected a similar request on May 7, a day after the order was passed for local elections. The Shinde faction pointed out that the ECI had permitted the Uddhav Thackeray faction to contest elections under the name Shiv Sena (Uddhav Balasaheb Thackeray) with the flaming torch symbol for two years.
The bench told Kamat, 'Even if elections are held, your rights will not go as the matter is pending here.'
Shinde replaced Thackeray as the chief minister as he formed the government with the Bharatiya Janata Party's help in June 2022 after the Shiv Sena's split. Thackeray quit as the governor called for a floor test.
The Supreme Court in May 2023 said the governor was not justified in calling upon Thackeray to prove his majority on the floor of the House. It added that there was no material to show Thackeray had lost the confidence of the House. The court did not restore power to Thackeray as he resigned before the floor test.
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