The Supreme Court's 2023 constitution bench ruling in the Shiv Sena split case—Subhash Desai v. Principal Secretary, Governor of Maharashtra—did not conclusively reject the legislative majority test as a method to determine the real political party. The Eknath Shinde faction now argues before the Election Commission that the Uddhav Thackeray group aligned with the ideologically opposite Congress-NCP combine, while Shinde's faction maintained the original Shiv Sena-BJP alliance, making legislative majority the genuine indicator of party identity.

The Shiv Sena split case sits at the intersection of three constitutional provisions: the Tenth Schedule (anti-defection law), Article 75/164 (collective responsibility and the role of the Governor), and the Election Commission's jurisdiction under the Symbols Order, 1968 to adjudge competing claims to a party's name and symbol.

The Tenth Schedule, inserted by the 52nd Constitutional Amendment 1985, disqualifies a member who 'voluntarily gives up membership' of the original party or votes against party directions. Crucially, the Speaker decides disqualification, but the Supreme Court in Nabam Rebia (2016) held that the Speaker cannot proceed with disqualification when a motion for their own removal is pending—a procedural shield the Shinde faction invoked.

The Constitution Bench in Subhash Desai v. Principal Secretary (May 2023) ruled: (1) the Governor had no objective material to invite Shinde to form government; (2) the floor test ordered was unconstitutional; (3) the Speaker's decision to recognise the Gogawale Whip was contrary to the Tenth Schedule; but (4) the Court declined to restore the Uddhav government because he had resigned before the floor test.

On the question of who is the 'real' party—the central political-law issue now before the Election Commission—the Court explicitly did not rule out the 'legislative majority test' (i.e., counting which faction commands more legislators). This keeps alive the argument that a faction holding the majority of elected representatives is the original party, a principle with roots in the Sadiq Ali v. Election Commission (1972) ruling where the EC used a combined test of legislative and organisational majority.

The Tenth Schedule's paragraph 3 (merger exception, requiring two-thirds of party legislators) was the only legitimate route for Shinde; the Court found a split (paragraph 3's predecessor, deleted in 2003) cannot be claimed. This doctrinal gap—no 'split' defence exists post-2003 amendment—makes the legislative majority argument before the EC even more significant for CLAT PG aspirants.