Shinde faction gets Sena name, symbol: How EC decided on the ‘real’ Sena

While passing its decision, the EC considered and analyzed three tests mentioned in the Sadiq Ali case (supra), which includes the Test of Aims and Objects of the Party Constitution, Test of Party Constitution, and Test of Majority. Of these, the EC found the Test of Aims and Objects of the Party Constitution to be inapplicable. Besides, it concluded that using the Test of Party Constitution for determining the present dispute case will be undemocratic and catalytic in spreading such practices across parties.

While applying the Test of Party Constitution, the EC said that the amended Constitution of 2018 of Shiv Sena is not on record of the Commission. It said that the Constitution of 2018 has conferred widespread powers of making various organisational appointments on 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 said.

“While applying the “Test of Party Constitution”, the Commission found that the Party Constitution on which respondent (Uddhav Thackeray) was placing strong reliance is undemocratic. The amendments in the Constitution in 2018 had undone the act of introducing democratic norms in the Party Constitution of 1999 and the functioning of Shiv Sena brought by Late Balasaheb Thackeray at the insistence of the Commission. “The amended Constitution of 2018 displaces the agreed Constitution of 1999, that too without a confirmation or scrutiny of the amendment process itself having been followed diligently,” The EC order stated.
The EC also said that the complete list of office bearers of various bodies was not also provided to the Commission, whenever elections were held or appointments were made.

The order states that the 2018 Constitution of Shiv Sena, by way of its plain reading on the vital axis of remedy/modality of dissent, in such factual circumstances, stifles all options of rival group(s) in its very formulation.

The EC said that neither of the factions provided details of the actual existing strength of the organisational body. The list of office-bearers as communicated to the Commission in 2018 does not reflect the details of the members of the Pratinidhi Sabha and hence, the Test of Majority in the organisational wing could not yield determinable or “satisfactory” number.

The poll body, hence, relied upon the Test of Majority in the legislative wing, which shows qualitative superiority in the majority test of legislative party to the Shinde faction which has support of 40 out of 55 Sena MLAs and 13 out of 18 Sena MPs.

On the other hand, Thackeray led Sena has only 15 MLA out of 55 and five MPs out of total 18 MPs – amounting to 23.5 per cent and 27per cent votes polled respectively.

“The very basis of the recognition of a political party is in terms of percentage of votes it polled in elections to the legislative assembly and or to the House of People and number of elected members as per the provisions of para 6 A, 6B and 6 C of the Symbols Order. It was found that the outcome of the majority test in legislative wing clearly reflects qualitative superiority of the majority test in favour of Petitioner(Eknath Shinde led Sena),” the order stated.

“While the application of this test in the legislative wing of the Shiv Sena has given a clear answer as to which faction is enjoying majority support, the application of this test in the organisational wing of the Party is found to be yielding indeterminable and non-conclusive outcome. Therefore, through a conjoint and wholesome reading of all aspects, outcome of the tests and embedding the democratic imperative, there is a recognisable basis in the factual material of this dispute, to discern the outcome of legislative wing test as the fulcrum, reflecting both, the fact of the split and, majority,” the order said.