While giving his decision on January 10 that the “real Shiv Sena” at the time of the party’s split on June 21, 2022, was the group led by Chief Minister Eknath Shinde, Maharashtra Assembly Speaker Rahul Narwekar maintained that the 1999 Sena constitution was the only “official” constitution to consider this question as it was submitted to the Election Commission (EC) by the party. Narwekar also ruled that the Sena’s 2018 amended constitution cited by the Uddhav Thackeray-led Sena (UBT), which gave him “unabridged powers”, was “not on record” before the EC and his office.

Clearly, not getting validation from the EC to the 2018 amended constitution turned out to be the “root cause” for Narwekar declaring the Shinde faction as the “real Sena” and rejecting the disqualification petitions against its MLAs.

The Speaker’s verdict also reignited questions within the Uddhav Sena over “poor handling” of the crucial matter by the party’s legal wing.

The Sena’s two constitutions (1999 and 2018 versions) and the Uddhav group’s issuing whips via WhatsApp messages to the Shinde faction legislators emerged as key factors in Narwekar’s ruling, but it was not for the first time that the 2018 constitution matter dealt a blow to the Uddhav Sena.

In its ruling on February 17, 2023, the EC had also recognised the Shinde faction as the “real Sena” and allotted it the undivided party’s name and symbol “bow and arrow”. While considering the 2018 constitution, the poll body underlined that it was “not on its records”. The Shinde group had called this party constitution “irrelevant” and “unconstitutional”.

Here is a look at how the 2018 Sena constitution has been a key factor in the EC and the Speaker’s decisions against the Uddhav faction.

The EC, in its ruling, stated that as per the 2018 amended constitution, the term of Paksha Pramukh (party chief) Uddhav Thackeray was set for a period of five years until

the next elections to be held in 2023. He was given “highest authority” in the party with his decisions in all matters concerning its policy and administration stipulated to be final.

Among his other “unabridged” powers, the EC noted, the Paksha Pramukh was given the right to dissolve the Rashtriya Karyakarini (national executive) of the party at any given time. He was also given the power to remove any member or office-bearer of the party.

In its order, the EC decided that the “test of party constitution” advocated by the Uddhav group could not be relied upon, as it held that the amended 2018 constitution was “not on record of the Commission” and thus the “test of majority in organisational structure of political party was inconclusive”. Therefore, the poll body decided to rely on the “test of majority” in the legislative wing of the undivided Sena, which favoured the Shinde faction. The EC also held that the 2018 constitution on which the Uddhav group had relied on was “undemocratic”, stating that it had “undone the act of introducing democratic norms in the agreed party constitution of 1999” which was brought by late Balasaheb Thackeray at the poll body’s insistence.

The EC also said the 2018 constitution conferred “widespread powers of making organisational appointments” to a “single person”. “Thus, the undemocratic norms of the original Constitution of Shiv Sena, 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,” it noted.

The SC Constitution Bench, in its May 11, 2023 order, had said that in arriving at the decision in disqualification proceedings against the MLAs of the two Senas, the Speaker shall decide which faction was the “real Shiv Sena” and while doing so he shall consider the version of the party constitution submitted to the EC with consent of both factions.

The SC also ordered that if the rival groups submit two or more versions of the party constitution, the Speaker must consider the version submitted to the EC before the rival factions emerged. “In other words, the Speaker must consider the version of the party constitution which was submitted to the ECI with the consent of both factions. This will obviate a situation where both factions attempt to amend the constitution to serve their own ends,” the SC noted

Deciding on the issue of the relevant party constitution, Narwekar held that the Sena (UBT)’s submission calling for the amended 2018 constitution to be taken into account cannot be accepted. The last party constitution submitted to the EC before the rival groups emerged was in 1999, he said, adding that no 2018 amended constitution was on the EC’s record, and hence he had to rely on the 1999 document. “I am bound to follow directions of SC to take into account the constitution provided by the EC,” his order said.

Another key question before the Speaker was that as per the 2018 Sena leadership structure, whether the decision of the Paksha Pramukh was synonymous with the “will of the political party”. Narwekar stated that the 1999 constitution provided that the Rashtriya Karyakarini would be the “highest authority” of the party and that Paksha Pramukh was only a presiding member of the highest authority and “in no way/ is the sole repository” of its “decision making”.

However, the 2018 constitution had stated that Paksha Pramukh’s decision was “final” as he was the “highest authority” in the party. The Speaker held that Paksha Pramukh did not have any power to remove any party leaders, so “(Uddhav) Thackeray’s submission that he had removed Shinde from the post of Shiv Sena Leader cannot be accepted”.

So, the Speaker said, the Uddhav group’s submission that the decision and will of Paksha Pramukh was synonymous with the will of the party “cannot be accepted”.

He held that the 2018 leadership structure was not in conformity with the 1999 constitution. In light of this, Narwekar also ruled like the EC that the legislative majority would be the factor to determine the

“real Shiv Sena”. So, he also held that the Shinde faction, which had a legislative majority with 37 out of 55 party MLAs, was “the real political party” when the rival factions emerged.

On its part, the Sena UBT has been claiming that it had submitted the 2018 amended constitution to the EC in March 2018. “All the documents pertaining to the 2018 amended constitution were submitted to the EC and we had got acknowledgement receipt from the poll body” Uddhav Sena MLC Anil Parab said.

Parab also claimed, “Even earlier, when amendments were made to the party constitution in 2013 after Shiv Sena Pramukh Balasaheb Thackeray’s death, which declared Uddhav as Paksha Pramukh, that was also submitted before the EC.”

The Sena (UBT) has now approached the SC to challenge the Speaker’s decision.