Shiv Sena Case: Supreme Court Says Political Party Decision Must Prevail Over Legislative Party Majority in Defection Dispute

The Supreme Court of India, during the hearing of Sunil Prabhu v Eknath Shinde, SLP(C) No. 1644-1662/2024 and connected petitions on August 5, 2026, made significant oral observations on defection disputes. A bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice V Mohana indicated that under existing law, a political party retains subsisting control over its legislature party, and any decision of the political party, validly demonstrated, must prevail over even the majority of the legislature party.

It is important to note that these are oral observations made during the hearing and do not constitute a final judgment or binding order. The hearing is continuing, with the next date fixed for the following day at 2 pm.

The Two Petitions Before the Court

The Court is hearing two interlinked petitions arising from the 2022 Shiv Sena split. The first, filed by Sunil Prabhu (Uddhav Thackeray faction), challenges the Maharashtra Speaker's refusal to disqualify Eknath Shinde faction MLAs under the Tenth Schedule. The second, filed by Uddhav Thackeray, challenges the Election Commission of India's (ECI) decision recognizing the Shinde faction as the official Shiv Sena and awarding it the "bow and arrow" symbol. Both petitions address a core constitutional question: when a legislative party breaks from its parent political party, which entity holds supremacy? The answer carries implications for the constitutional morality doctrine and for the anti-defection framework designed to prevent elected representatives from switching allegiances after securing a mandate under a party banner.

Background: The 2022 Shiv Sena Revolt

In June 2022, 31 Shiv Sena MLAs led by Eknath Shinde revolted against party president Uddhav Thackeray. The rebel legislators first traveled to Surat before relocating to Guwahati. There, they passed a resolution recognizing Shinde as Group Leader and appointing Bharat Gogawale as Chief Whip, repudiating the existing party structure.

Prior to the revolt, Thackeray, as Paksh Pramukh (Party President), had appointed Shinde as Group Leader and Sunil Prabhu as Chief Whip. After the rebellion, Thackeray convened a party meeting and resolved to replace Shinde with Ajay Chaudhri as Group Leader. This resolution was communicated to and accepted by the Deputy Speaker. The crisis led to the collapse of the Maha Vikas Aghadi government and a new government under Shinde with BJP support, illustrating the turbulent intersection of law and politics, as also seen in the Andhra Pradesh HC quashes FIR against CM Chandrababu Naidu in the Amaravati land pooling case.

The Subhash Desai Judgment and Its Aftermath

In 2023, a Constitution Bench delivered its landmark judgment in Subhash Desai v Government of Maharashtra, holding that the Governor's decision to direct a floor test was constitutionally improper. However, it declined to reinstate Thackeray as Chief Minister since he had resigned before facing the floor test. Crucially, the judgment established that a legislative party cannot act independent of its parent political party, and legislative majority is irrelevant in determining which faction constitutes the "real" party.

Despite this, the ECI in February 2023 recognized the Shinde faction as the official Shiv Sena and granted it the "bow and arrow" symbol, relying on the Shinde group's legislative majority. In January 2024, the Speaker rejected disqualification petitions against Shinde faction MLAs using similar reasoning. These decisions now form the subject of the Supreme Court petitions, raising questions about institutional authority akin to those in the coal block allocation case against former PM Manmohan Singh.

Justice Bagchi's Key Observation: Political Party Supremacy

During the August 5 hearing, Justice Bagchi made a pointed observation directly invoking the Subhash Desai precedent. He stated: "Law as it stands is Subash Desai. The control of the political party subsists over the legislature party. Any decision of the political party, validly demonstrated, must prevail over any will, even if of the majority of the legislature party." While oral and not part of a formal order, this signals a strong judicial inclination toward affirming political party supremacy in defection disputes.

Justice Bagchi further observed that the ECI erred in considering legislative majority. "It should be something to do with the political party," he said. If reflected in the final judgment, this could reshape the ECI's approach to party disputes. In a democratic framework where legislative norms are actively evolving, as seen in the passage of the Prevention of Insults to National Honour Amendment Bill 2026 and the Public Examinations Amendment Bill 2026, the integrity of party-based governance remains a central concern for Parliament and the judiciary alike.

CJI Kant Identifies the "Gray Area"

While the bench appeared inclined toward political party supremacy, Chief Justice Kant raised a practical difficulty. He questioned whether any defined parameter exists for determining what constitutes "majority" within a political party, as opposed to a legislature party where numbers are easily verifiable. The CJI described this as a "gray area," highlighting the complexity of applying anti-defection principles when political parties often have informal organizational structures. This tension may require the Court to define clearer standards for validating a political party's will, a challenge intersecting with broader questions about institutional transparency, much like those raised when the Supreme Court stays Delhi High Court ruling declaring NSE a public authority under the RTI Act.

Sibal's Arguments: Defection as an Assault on Democracy

Senior Advocate Kapil Sibal, appearing for the Uddhav faction, contended that the defection of 31 MLAs was pre-meditated, not a spontaneous realignment. He emphasized that the Tenth Schedule no longer recognizes the concept of a "split"; the only exception is "merger," requiring at least two-thirds of a legislature party's members to agree. Anything short of a valid merger, Sibal argued, constitutes defection and must attract disqualification.

Sibal posed a pointed question: "Is it not fundamentally against the basic structure of the Constitution that the representative of a party suddenly moves to another party, forms coalition with it, topples the government and doesn't allow the disqualification proceedings to be decided until the next election?" His argument targets a recurring concern where Speakers deliberately delay defection proceedings, allowing defecting legislators to serve without consequence. This, Sibal suggested, reduces elections to a farce. The implications extend beyond Maharashtra, touching on the democratic framework governing party loyalty across states, including jurisdictions where complex legal mechanisms, such as obtaining a caste validity certificate from the Scrutiny Committee in Maharashtra, reflect the state's layered governance structure.

The Road Ahead

Senior Advocates Neeraj Kishan Kaul and Maninder Singh appeared for the respondents. Their arguments are expected to focus on the practical realities of the split and the legitimacy of the ECI's symbol allocation process.

The final outcome will have implications extending beyond the Shiv Sena dispute. If the Court formally holds that the ECI and Speaker were wrong to rely on legislative majority, it would reaffirm the Subhash Desai principle and require both institutions to reconsider their approach to party disputes. Such a ruling would reinforce the principle that legislators owe their seats to the party that fielded them, not to the numerical strength they can muster after breaking away.

The hearing is set to continue, and the legal community will be watching closely as the Court navigates constitutional law, political party autonomy, and democratic accountability in one of the most consequential defection disputes in recent Indian history.