The Supreme Court questioned the Election Commission of India's method of resolving the Shiv Sena split dispute. The Court asked whether the ECI, while deciding which faction — led by Uddhav Thackeray or Eknath Shinde — was the real Shiv Sena, could legitimately apply a legislative majority test. The concern is that counting MLAs to determine party identity may blur the constitutional boundary between the ECI's role under the Symbols Order and the Speaker's role under the Tenth Schedule.

This dispute sits at the intersection of two distinct constitutional mechanisms: the Tenth Schedule (anti-defection law) and the Election Symbols (Reservation and Allotment) Order, 1968.

The Tenth Schedule, added by the 52nd Constitutional Amendment (1985), empowers the Speaker to disqualify members who voluntarily give up party membership or vote against party direction. Crucially, a 2023 Constitution Bench ruling in Subhash Desai v. Principal Secretary (the Shiv Sena case) held that the Governor's decision to invite Shinde for a floor test was improper, and that disqualification proceedings must be decided before the floor test.

Separately, the ECI has jurisdiction under the Symbols Order to decide which faction represents the 'real' party when a split occurs. Historically, the ECI used a dual test — support among legislators AND organisational members. However, the Supreme Court is now questioning whether relying primarily on legislative majority distorts this inquiry by importing a Tenth Schedule logic (majority in legislature) into an ECI proceeding where party organisation and support among general members should matter equally.

The constitutional tension: if the ECI uses legislative headcount, it effectively prejudges disqualification issues still pending before the Speaker. This risks violating the doctrine of separation of functions between constitutional bodies and could also undermine the anti-defection law's purpose of preventing mass defections from being rewarded with party recognition.