Eknath Shinde Faction To Supreme Court: Subhash Desai Didn't Extinguish Legislative Majority Test
Senior advocate Neeraj Kishan Kaul represented the Eknath Shinde faction before the apex court.
By Sumit Saxena
Published : September 2, 2026 at 10:08 PM IST
New Delhi: The Eknath Shinde faction contended before the Supreme Court on Wednesday that the Constitution Bench ruling in Subhash Desai did not entirely foreclose the legislative majority test, arguing that the measure could still be relevant in determining which faction commands the majority when a party splits.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing the Uddhav Thackeray faction’s challenge to the Election Commission of India's decision recognising the Eknath Shinde-led group as the "real Shiv Sena" and allotting it the party name and symbol.
Senior advocate Neeraj Kishan Kaul represented the Eknath Shinde-led Shiv Sena. Kaul began responding to the Thackeray faction's submissions.
Referring to the 2019 election, Kaul argued that both BJP and Shiv Sena went to the electorate together to fight an election; the results came from jointly fighting that election. He said the petitioners completely opted out and aligned with parties completely opposed to the philosophy of Shiv Sena.
"This was something brewing for a long time and overnight dissents do not happen—dissents take time. Ultimately, people said it cannot go on and the resolution said you have an autocratic setup and no one can voice any concern…," argued Kaul, adding that when all this came together, a petition under para 15 of the Symbols Order was made to the ECI.
"We represent the real Shiv Sena. According to us we are the lifeblood of the political party and ought to be recognized, and the symbol of bow and arrow ought to be given to us…”, Kaul argued.
He said that rival parties appointing whips, holding parallel meetings, rival parties filing disqualification petitions, and resolutions being passed by them all indicate a prima facie split, and if that exists, the ECI assumes jurisdiction.
Kaul stressed that it is factually and legally incorrect to say that Subhash Desai said that in Symbols Order, legislative party has no mention and thus no place and can't be looked at.
He added that Subhash Desai says under the Symbols Order, secured seats and votes are important considerations for freezing a symbol and for a political party to receive a symbol. He argued that relying on Sadiq Ali, it says that legislative majority test is a relevant test under para 15.
The senior counsel stressed that the whole debate in Subhash Desai regarding the legislative party versus political party was in the context of the fact that who appoints whip.
He said the other side argued that the whip appointed by the legislative party represents the whip of the political party as well and in that context, Subhash Desai stated that one cannot conflate the legislative and political parties.
He stressed that the Constitution Bench recognized the importance of votes and legislative majority and to say this was completely ousted and done away with is a complete incorrect reading. He said the day ECI order came, there was no judgment in Subhash Desai.
Kaul said that the organisational structure established by Shiv Sena founder late Balasaheb Thackeray to prevent the concentration of power in the hands of the party chief and make it more "democratic" was significantly altered by Uddhav Thackeray in 2018. The hearing in the matter will continue on September 15.
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