The Supreme Court on Thursday restrained the Election Commission from taking any “precipitate” action” on a plea by the Eknath Shinde-led faction to recognise it as the “real Shiv Sena” and allot it the party’s official bow-and-arrow symbol

A bench headed by Chief Justice of India N.V. Ramana, while orally directing the ECI through senior counsel Arvind Datar, said it would take a decision on Monday to refer the various issues relating to the interpretation of the anti-defection law under the 10th schedule of the Constitution to a five-judge constitution bench.

The bench, which included Justice Krishna Murari and Justice Hima Kohli, passed the directions on an application moved by the Uddhav Thackeray faction on the notice issued to it by the ECI on the Shinde group’s plea for allotment of the original party symbol to the rebel faction.

During the brief arguments on the interpretation of the anti-defection law, senior advocate Kapil Sibal argued that the 40 rebel MLAs led by Shinde cannot claim themselves to be the “real Shiv Sena” as they stood disqualified under the anti-defection law.

He pointed out that the Shinde faction had neither formed a new political party nor merged with the BJP, which is a condition under the 10th schedule to avoid defection.

Senior advocate Harish Salve, representing the Shinde faction, said there was nothing to show that the rebel MLAs had left the party.

“Anti-defection law cannot be used as an anti-dissent law,” Salve argued.

He argued that the Speaker alone has the power to deal with disqualification proceedings and also said courts should not interfere in these matters.

However, the CJI said legislators also have a duty to abide by the party whip.

“Otherwise, what is the use of a party whip?” the CJI said.

The bench rejected Salve’s plea that the court should not interfere in the present matter. The CJI reminded the senior lawyer that the Shinde faction, which he represents, was the first to approach the top court when the then deputy Speaker had initiated disqualification proceedings against the rebel group.