While allowing Chief Minister Eknath Shinde-led faction to retain the Shiv Sena name and its party poll symbol ‘bow and arrow’, the Election Commision (EC) said that the Shiv Sena party's Constitution amended in 2018 is “undemocratic” and since the details of organisational structure was not mentioned by any of the faction, proving the test of majority in organisational party structure was inconclusive. Hence, the EC relied upon the test of majority in the legislative wing of the party in which the Shinde faction had the numbers. The Indian Express had earlier reported how, in its final statement to the EC, the Shinde faction had claimed that Uddhav Thackeray had illegally amended the party Constitution in January 2018 and appointed himself as president. While passing its decision, the EC considered and analysed 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 the amended Constitution of 2018 of Shiv Sena is not on record of the commission. It said 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 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.
