Shivsena vs. Shivsena: Eknath Shinde represents real Shivsena as per Election Commission

Dispute between Udhv Thakrey and Eknath Shinde both claiming to be real Shivsena:

Shivsena is a recognized State Party in the State of Maharashtra with the symbol “Bow & Arrow as its reserved symbol and the Party was registered with the Election Commission of India on 12. 10. 1989 under the provision of Section 29A of the Representation of the People Act, 1951. The Constitution of the Party as available on record of the Commission is as amended in the year 1999. During the course of this dispute case, it was brought to the Commission’s knowledge that the aforesaid Constitution of Shivsena was amended in the year 2018. However, this amended Constitution was never brought on record of the Commission as required under Section 29A of the Representation of the People Act, 1951, hereinafter called RPA, 1951. Further, as per the details available with the Commission of the last organisational elections of the Party, as communicated vide letter dated 27.02.2018, Sh. Uddhav Thackeray [hereinafter, “Respondent”] was elected as the ‘Shivsena Paksha Pramukh, for a term of five years along with other office-bearers. Sh. Eknath Shinde [hereinafter, “Petitioner”] was appointed as a ‘Shivsena Leader, during the aforesaid organisational election.

The Chief Election Commissioner, noted in the order passed by the Commission in Janata Dal Dispute as under:

In almost all the cases of disputes in political parties with which I had the occasion to deal, allegations have been made that the disputes had arisen or splits occasioned due to the arbitrary or capricious acts of certain office bearers who were not allowing the will of the mojority to prevail. But in all such cases what the Commission was confronted with was some office bearers occupying or sticking to their offices by the manipulative tactics of postponing or not holding altogether the organisational elections in the party and with some adhoc committees or bodies constituted of some handful of nominated me7nbers chosen at the whim and fancy of the leaders at the top. The Test of Majority, in such adhoc nominated bodies also becomes redundant. Firstly, such adhoc nominated bodies having been formed by the party bosses themselves will naturally consist of the favoured persons who will rarely go against the wishes of those to whom they owe their very existence in those bodies. In the next place, such nominated persons cannot be truly termed the representatives of the primary members who had no say or hand in their appointments and consequently the decisions taken by such adhoc nominated bodies, even if by majority, cannot be regarded as the decisions reflecting the wishes and aspirations of the majority of primary members. Confronted with such situation the Commission finds itself in a helpless situation to grant relief to those who approach it seeking protection against the tyranny of the privileged few who have been treating the political parties headed by the as their fiefdom.

49. […]. While there is an obligation on the part of all registered political parties to abide by their party Constitution, it is even more so on the part of the recognised parties to scrupulously observe the same, particularly in the matter of their democratic functioning. Apart from the said obligation under their party Constitution, the concept of noblesse oblige, casts a sacred duty upon such recognised parties, which are placed at a higher pedestal even by the law in certain respects, to ensure their functioning on healthy democratic norm to which they bind themselves through the covenant of a written Constitution at the time of seeking registration under section 29A of the Representation of the People Act, 1951..

Order dated 16.10.1994 passed in Dispute Case No. l of 1994, In Re.. Janta Dal

Total votes in favour of Eknath Shinde:

That in the State Legislature of Maharashtra, the Petitioner has the support of 40 out of 67 Members (55 MLAS and 12 MLCS) whereas the Respondent has the support of 23 out of 67 Members (claimed 27/67). With respect to the Members of Parliament, the Petitioner has the support of 13 out of 22 Members (19 Lok Sabha MPS and 3 Rajya Sabha MPs) whereas the Respondent has the support of 7 out of 22 Members (claimed 9/22). Thus, the Petitioner enjoys a clear support in the legislative wing of the Party. The outcome of the majority test in legislative wing clearly reflects qualitative superiority of the majority test in favour of the Petitioner.

The 40 MLAs, supporting Petitioner, garnered 36,57327 votes out of total of 47,82440 votes i.e 76 % of votes polled in favor of 55 wining MLAS in the general election to the LA, 2019. This contrasts with 11,25113 v.otes garnered by 15 MLAS whose support is claimed by the Respondents i.e 23.5% of votes polled in favor of winning 55 MLAS. Further, as against 90,49,789, total votes polled by Shiv Sena in General election to the Legislative Assembly of Maharashtra in 2019 (including the loosing candidates), votes polled by 40 MLAS supporting the petitioner come to 40 % whereas votes polled by 15 MLAS supporting the Respondents come to 12 % of total votes polled by Candidates contesting on symbol of the party in 2019 general election to the Legislative Assembly of Maharashtra.

Similarly, the 13 MPS supporting Petitioner garnered 74,88,634 votes out of total of 1,02,45143 votes i.e ~73 % of votes polled in favor of 18 MPS in general election to the Lok Sabha ,2019. This contrasts with 27,56,509 votes garnered by 5 MPS supporting Respondents (although claimed 6 and affidavits filed by only 4) i.e 27 % of votes polled in favor of 18 MPS. Further, as against 1,25,89064, the total votes polled by Shiv Sena in Lok Sabha election, 2019 (including the losing candidates), votes polled by 13 MPS supporting the petitioner comes to ~59 % whereas votes polled by 5 MPS (claimed 6 whereas affidavits of only 4) supporting the Respondents comes to -22 % .


In view of the foregoing arguments made by the Petitioners and the Respondent a contestation can be discerned both with regard to the sequencing of the steps and invoking the normative significance of each test in relation to the other. Of the 3 tests laid down in Sadiq Ali; i.e. “Aims and Objects, “Test of Party Constitution” and “Test of Majority”, it is the last test which consists of test of majority in organisational wing and legislative wing and is capable of yielding a numerical basis. In this regard it is noted that ECI has found that the organisational aspects are invariably falling short, in the absence of normative clarity a priori. Inner workings of the Political Parties which are to be transparent and well disclosed to rank & file and, to the citizens at large, should be 24×7 work in progress. Unfortunately, it not being so, creates a crisis of credibility in assessing claims of positional support. In comparison the legislative wing tests yield an immediately reliable outcome. The status of being a Lok Sabha MP or, a Rajya Sabha MP or, an MLA or, an MLC, follows from The RP Acts 1950 & 51. Thus, it, as a starting universe of a comparative count, posits itself as of highest quality evidentiary value.

The Commission has also assessed the issue whether the organisational wing and the legislative wing and the respective tests are capable of being viewed so distinctly as some times they are posited in the arguments. From the very scheme of the R P Act, 1951 and the provisions of the Symbols Order, it is evident that the relationship between the organisational and the legislative wing of any political party is both conjoint and dichotomous. In the act of registration, the organisation structure is the starting point. In the act of recognition, it is the electoral performance. Further, from the above view point, any interpretation which does not see conjointness in the organisation and legislative manifestation of a Political Party is not immediately convincing.

Final Order:

The Commission having elaborately dealt with all the aspects of maintainability of the petition, the fact of split in the party, considered and applied three tests as envisaged in Sadiq All. After analyzing the aforesaid submissions and issues so framed (A to D), discussed at length in the preceding paras, and taking the holistic view, this Commission is of the considered view that:

The present proceedings are clearly maintainable” both as substantially fulfilling the matrix 18id down in Paragraph 15 of the Symbols Order in ternis of the facts made available to the Commission, and the impact of pendency of “disqualification proceedings” having been comprehensively argued in the Honble High Court and Honble Supreme Court. Further, the jurisdiction of the Commission in deciding disputes under Paragraph 15 of the Symbols Order is separate and independent from that of the jurisdiction of the Honble Speaker with respect to disqualification proceedings under the Tenth Schedule and does not overlap (as dealt in issue A);

II. Split has occurred in the Shivsena Paty (as dealt in issue B);

III. Of the three tests mentioned in the Sadiqq Ali case (supra) for the purpose of adjudicating the present dispute, firstly the Test of Aims and Objects of the Party Constitution, was considered. Petitioner asserted that it isthe Respondent who, in the act of forniing a coalition with Parties of different ideology, has deviated from the “Aims & Objects, of the Paty, the same formed the core point of disagreement and disappointment in the rank and file, and that is the genesis of the present dispute. The Respondent’s claim was that the ideology of the Shivsena, as described in Article V of the Paty Constitution, is that “the Party shall be Committed to rational secularism socialism and national integrity” and that there was no departure from following such ethos by the Respondent or the Pary. It was seen that neither of the two factions had made any significant avernients on the application of this test and thus, the same was found to be inapplicable in the circumstances of the present case (as dealt in issue C); and, that,

IV. While applying the -Test of Party Constitution”,

a. The Cornmission examined the 2018 Constitution of the party in detail. Non-communication of both the “material change” amendment and of the equally important process of the amendment in the Constitution of the party is non-compliant with the conditions of registration as communicated by the Election Commission of India to Shiv Sena vide its letter No. 56/R/ 166/89/5147-80 dated 19. 10. 1989. These conditions Interalia stipulate in para 2, the statutory requirements under section 29 A of RP Act, 1951; and also, clause (xviii) and (xx ii) of the Guidelines prescribed by the ECI in 2010, which have issued in exercise of powers conferred by Article 324 Constitution of India and Section 29 A of the RP Act, 1951;

b. The amended Constitution of 2018 is not on record of the Commission;

c. While applying the Test of Party Constitution” found that the Party Constitution on which placing strong reliance is undemocratic;

d. The complete list of office bearers of various bodies was not provided to commission whenever elections were held or the appointments were made;

e. The amendments in the Constitution in 2018 had undone the act of introducing democratic norms in the Party Constitution of 1999 and the functioning of Shivsena, brought by Late Balasaheb Thackeray at the insistence of the Commission. The amended Constitution of 2018 displaces the agreed, Constitution of 1999, that too without a confirmation or scrutiny of the amendment process itself having been followed diligently;

f. The Constitution of 2018, confers widespread powers of making various organisational appointments on a single person. Thus, the undemocratic norms of the original Constitution of Shivsena, which was not accepted by the Commission in 1999 have been brought back in a surreptitious manner further making the party akin to a fiefdom;

g. Further, the 2018 Constitution, by way of its plain reading on the vital axis of  remedy/modality  of dissent, in such factual circumstances, stifles all options of rival group(s) in its very formulation.

h. Article XI(B) of the 2018 Constitution of the Party states that the Rashtriya Karyakarini shall be elected by the Pratinidhi Sabha. Thus, the Rashtriya Karyakarini is a body which is in fact ‘elected’ by a largely ‘appointed’ Pratinidhi Sabha. To sum up the situation, it is apt to quote the observation of the Commission conveyed to Shiv Sena in the year 1999 through the then Chief Electoral Officer, Maharashtra, on the draft amendments:

‘To put in nutshell, the party Constitution envisages the President nominating the Electoral College that is to elect him. This goes against the spirit of democracy and negates the very purpose for which the entire exercise was carried out”

The paradox of India being the world’s largest democracy and its political field being occupied by some Parties which are being treated as fiefdoms is disconcerting. For a truly functioning democracy, it is important that one of the key stakeholders i.e., the political parties are run in a democratic manner and this in turn can be ensured only if the Constitution being adopted by them does not allow concentration of power in the hands of a few. Therefore, any reliance on the “Test of Party Constitution” for determining the present dispute case will be undemocratic and catalytic in spreading such practices across parties (as dealt in issue C);

V. It is reiterated that as per the 2018 Constitution of the Party, the Rashtriya Karyakarini is the apex representative body of the Shivsena with strength of 13 members. However, on examining its composition, it was found that the said body was elected by a largely appointed Pratinidhi Sabha. Further, neither of the faction provided details of the actual existing strength of the body. Similarly, the list of office-bearers as communicated to the Commission vide letter dated 27.02.2018 does not reflect the details of the members of the Pratinidhi Sabha. Thus, the Test of Majority in the organisational wing could not yield determinable or “satisfactory finding due to reasons specifically detailed in paragraph 109;

The holistic view of the facts, precedents and court rulings have broadly revealed that:

No serious contestation on facts by either side of numerical outcome of legislative wing test has emerged.

There is ‘democratic deficit, in the amended Constitution, the process of its amendments and its working.

That respective claims of numerical majority in organisational wing by both factions is not satisfactory.

That combined reading of the respective numerical counts in the present case, more reliability emerges in the legislative wing.

That within the number count, overwhelming numerical superiority of Petitioner in legislative wing is categorically verifiable. The numerical count included all MPS, MLAS and MLCS.

Therefore, through a conjoint and wholesome reading of outcome of the tests and embedding the democratic imperative, all aspects, there is a recognisable basis in the factual material of this dispute, to discern the outcome of legislative wing test as the fulcrum, reflecting both, the fact of the split and, majority.

Full Judgement (PDF):

    Fine without imprisonment if sufficient in the case of road rage?

    Navjot Singh Sidhu road rage case:

    Navjot Singh Sidhu

    A dispute arose on the right of way between the accused and the deceased and respondent No.1 (the first accused) came out of his vehicle, pulled out the deceased from his vehicle and inflicted fist blows. It was alleged that the car keys of the deceased’s car were removed by the accused and fled from the scene of the occurrence. PW-3 and PW-4 took the deceased in a rickshaw to the hospital where the doctors announced that Gurnam Singh was dead.

    The punishment under Section 323 of the IPC has been prescribed as a sentence of a term which may extend to one year or a fine which may extend to Rs.1,000/- or both. In the present case, only the fine has been imposed. The question, thus, to be analysed is whether in the given
    factual scenario, grave error can be said to have been committed on the issue of sentence by not punishing with imprisonment of any term whatsoever.

    Continue reading “Fine without imprisonment if sufficient in the case of road rage?”

    Look Out Circular prohibiting travel abroad: Validity of

    Conditions for Invocation of LOC:

    Q. What are the categories of cases in which the investigating agency can seek recourse of Look- out-Circular and under what circumstances?

    Ans. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.

    Q. What procedure is required to be followed by the investigating agency before opening a Look-out-circular?

    Ans. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.

    Q. What is the remedy available to the person against whom such Look-out-Circular has been opened?

    Continue reading “Look Out Circular prohibiting travel abroad: Validity of”

    Validity of seizure of property after acquittal from criminal prosecution.

    M.P. Prohibition of Cow Slaughter Act, 2004

    Right to property under article 300-A of the Constitution:

    It should be noted that the objective of the 2004 Act is punitive and deterrent in nature. Section 11 of the 2004 Act and Rule 5 of M.P Govansh Vadh Pratishedh Rules, 2012, allows for seizure and confiscation of vehicle, in case of violation of sections 4,5,6, 6A and 6B. The confiscation proceeding, before the District Magistrate, is different from criminal prosecution.
    However, both may run simultaneously, to facilitate speedy and effective adjudication with regard to confiscation of the means used for committing the offence.

    The District Magistrate has the power to independently adjudicate cases of violations under Sections 4, 5, 6, 6A and 6B of the 2004 Act and pass order of confiscation in case of violation. But in a case where the offender/accused are acquitted in the Criminal Prosecution, the judgment given in the Criminal Trial should be factored in by the District Magistrate while deciding the confiscation proceeding. In the present case, the order of acquittal was passed as evidence was missing to connect the accused with the charges. The confiscation of the appellant’s truck when he is acquitted in the Criminal prosecution, amounts to arbitrary deprivation of his property and violates the right guaranteed to each person under Article 300A.
    Therefore, the circumstances here are compelling to conclude that the District Magistrate’s order of Confiscation (ignoring the Trial Court’s judgment of acquittal), is not only arbitrary but also inconsistent with the legal requirements.

    [Source: Abdul Vahab vs. State of Madhya Pradesh decided by SC on 4th March 2022]

    Right to wear Hijab in School

    Can school impose condition of a Uniform for it’s students?

    Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights.

    The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right.

    The petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request.

    Full Judgment:

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    A Company founded and run to commit fraud is liable to be wound up.

    Devas Multimedia vs. Antrix Corporation

    The facts:

    On 28.07.2003, Antrix entered into a Memorandum of Understanding with Forge Advisors, LLC, a Virginia Corporation. The intent, as spelt out in the MOU, was to make both parties
    become “strong and vital partners in evaluating and implementing major new satellite applications across diverse sectors including agriculture, education, media and telecommunications”.

    On 22.03.2004, Forge Advisors made a presentation proposing an Indian joint venture, to launch what came to be known as “DEVAS” (Digitally Enhanced Video and Audio Services). It was projected in the said proposal that DEVAS platform will be capable of delivering multimedia and information services via satellite to mobile devices tailored to the needs of various market segments such as (i) consumer segment, comprising of entertainment and
    information services to digital multimedia consoles in cars and vehicles; (ii) commercial segment, comprising of high value information services to Commercial Information Devices in
    commercial transport vehicles; and (iii) social segment, comprising of Developmental Information Services to Rural Information kiosks in underserved areas. (This platform was never created and is not in existence even today)

    The proposal dated 15.04.2004 indicated that DEVAS was conceived as a new National Service, expected to be launched by the end of 2006, that would deliver video, multimedia and information services via satellite to mobile receivers in vehicles and mobile phones across India. The proposal contemplated the formation of a joint venture and an obligation on the part of ISRO and Antrix to invest in one operational S­Band satellite with a ground space segment to be leased to the joint venture. In return, ISRO and Antrix were to receive lease payments of USD 11 million annually for a period of 15 years.

    On 17.12.2004 Devas Multimedia Private Limited, (hereinafter referred to as ‘Devas’ or the ‘company in liquidation’) was incorporated as a private company under the Companies Act, 1956. Immediately thereafter, Antrix entered into an Agreement with the said company on 28.01.2005. The Agreement was titled as “Agreement for the lease of space segment capacity on ISRO/Antrix SBand spacecraft by DEVAS”.

    Continue reading “A Company founded and run to commit fraud is liable to be wound up.”

    Prime Ministers security breach: Directions by Supreme Court

    Taking into consideration the arguments advanced by the parties with respect to the issues relating to the security of the Hon’ble Prime Minister and other related issues raised by them, we deem it appropriate for the time being to direct the Registrar General, Punjab and Haryana High Court to secure and preserve the records relating to the Hon’ble Prime Minister’s scheduled tour of Punjab on 05th January 2022.

    We direct the Director General of Police, Union Territory of Chandigarh and an officer of the National Investigation Agency, not below the rank of Inspector General, to be nominated by the Director General, National Investigation Agency to assist the Registrar General, Punjab and Haryana High Court to forthwith secure and seize the records from the State police as well as Central agencies.

    Read Full Order:

    Directions of Supreme Court for admission to NEET (UG and PG)

    The submissions were urged before Supreme Court over a span of two days which necessitated a detailed interim order on the applicability of the EWS criteria as notified by OM 2019 for NEET-PG 2021. The formulation of the reasons in the interim order on the EWS reservation would take some time and therefore shall be delivered on a later date.

    However the validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG is upheld for reasons to follow. In the meantime, due to an urgent need to commence the process of Counselling the following operative directions were given by Supreme Court on 7th January 2022:

    7 (i) We accept the recommendation of the Pandey Committee that the criteria which have been stipulated in OM 2019 be used for 2021-2022 in order to ensure that the admission process is not dislocated;

    (ii) Counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the AIQ seats;

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    Validity of Emergency Arbitration Award

    Emergency Arbitrator Award

    By agreeing to the application of the SIAC Rules, the arbitral proceedings in the present case can be said to have commenced from the date of receipt of a complete notice of arbitration by the Registrar of the SIAC, which would indicate that arbitral proceedings under the SIAC Rules
    commence much before the constitution of an arbitral tribunal under the said Rules. This being the case, when Section 17(1) uses the expression “during the arbitral proceedings”, the said expression would be elastic enough, when read with the provisions of Section 21 of the Act, to include emergency arbitration proceedings, which only commence after receipt of
    notice of arbitration by the Registrar under Rule 3.3 of the SIAC Rules as aforesaid.

    A conjoint reading of these provisions coupled with there being no interdict, either express or by necessary implication, against an Emergency Arbitrator would show that an Emergency Arbitrator’s orders, if provided for under institutional rules, would be covered by the Arbitration Act.

    Whether an “award” delivered by an Emergency Arbitrator under the Arbitration Rules of the Singapore International Arbitration Centre [“SIAC Rules”] can be said to be an order under Section 17(1) of the Arbitration and Conciliation Act, 1996 ?

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