In an interim order passed late on Saturday (October 8) evening, the Election Commission of India (ECI) froze the well known ‘bow and arrow’ election symbol of the Shiv Sena until the competing claims for recognition by the two rival factions is decided.
In the operative part of its order, the ECI said that (a) “neither of the two groups led by Sh. Eknathrao Sambhaji Shinde (Petitioner) and other led by Sh. Uddhav Thackeray (Respondent) [shall] be permitted to use the name of the party ‘Shivsena’ simplicitor”; (b) “neither…group shall…be permitted to use the symbol ‘Bow & Arrow’, reserved for ‘Shivsena’”; and (c) “both…groups shall be known by such names as they may choose”.
This had been done “in order to place both the rival groups on even keel and to protect their rights and interests, and going by the past precedence,…to cover the purpose of the current Bye-elections and to continue till the final determination of the dispute in the matter…”, the ECI said.
“For the purposes of the current bye-elections”, the order said, the two groups “shall…be allotted such different symbols as they may choose from the list of free symbols…”.
The by-election to the Andheri East Assembly seat will be held on November 3. The Shinde faction had moved the ECI in an attempt to deny the Uddhav Thackeray faction the use of the ‘bow and arrow’ symbol in the bypoll.
Is all of this unusual?
When a prominent party splits, a tussle often ensues for its election symbol, which is frequently the embodiment of its very identity, and its fundamental connection with voters. Indeed, Indian voters are commonly heard saying that they would vote “kamal ka pool” or “panja” or “jhadu” while indicating their preference for the BJP, Congress, or Aam Aadmi Party, as the case may be.
The last time the ECI took a similar decision was in October 2021, when it froze the ‘Bungalow’ election symbol of the Lok Janshakti Party (LJP). Like in the case of the Shiv Sena, the intention on that occasion was to ensure that neither of the two factions of the LJP — led by Chirag Paswan, son of the late Ram Vilas Paswan, and Pashupati Kumar Paras, the senior Paswan’s brother — could use it in the Assembly byelections for the Kusheshwar Asthan and Tarapur seats in Bihar, which were scheduled for October 30 that year.
The LJP had split in June 2021.
Before that, tussles over the election symbol had been witnessed in 2017 after the Samajwadi Party (Cycle) and the AIADMK (Two leaves) split.
How does the ECI decide who gets the symbol?
Para 15 of the Symbols Order, 1968 — which has been cited by the ECI in the case of the Shiv Sena — states: “When the Commission is satisfied… that there are rival sections or groups of a recognised political party each of whom claims to be that party the Commission may, after taking into account all the available facts and circumstances of the case and hearing (their) representatives… and other persons as desire to be heard decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.”
This applies to disputes in recognised national and state parties (like the Shiv Sena or LJP). For splits in registered but unrecognised parties, the ECI usually advises the warring factions to resolve their differences internally or to approach the court.
But what happened in such cases before 1968?
Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
The most high-profile split of a party before 1968 was that of the CPI in 1964. A breakaway group approached the ECI in December 1964 urging it to recognise them as CPI(Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them.
The ECI recognised the faction as CPI(M) after it found that the votes secured by the MPs and MLAs supporting the breakaway group added up to more than 4% in the 3 states.
And what was the first case decided under the 1968 Order?
It was the first split in the Indian National Congress in 1969.
Indira Gandhi’s tensions with a rival group within the party came to a head with the death of President Dr Zakir Hussain on May 3, 1969. The Congress old guard, led by K Kamaraj, Neelam Sanjiva Reddy, S Nijalingappa and Atulya Ghosh, known as the Syndicate, nominated Reddy for the post. Indira, who was the Prime Minister, encouraged Vice-President VV Giri to contest as an Independent, and called for a “conscience vote” in defiance of the whip issued by party president Nijalingappa.
After Giri won, Indira was expelled from the Congress, and the party split into the “old” Congress (O) led by Nijalingappa and the “new” Congress (J) led by Indira.
The “old” Congress retained the party symbol of a pair of bullocks carrying a yoke; the breakaway faction was given the symbol of a cow with its calf.
Is there a way other than the test of majority to resolve a symbol dispute?
In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions. In the case of the Shiv Sena, the majority of the party’s elected representatives have switched over to Shinde’s side.
Whenever the EC could not test the strength of rival groups based on support within the party organisation (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.
Only in the case of the split in the AIADMK in 1987, which happened after the death of M G Ramachandran, the EC was faced with a peculiar situation. The group led by MGR’s wife Janaki had the support of the majority of MPs and MLAs, while J Jayalalithaa was supported by a substantial majority in the party organisation. But before the EC was forced to make a decision on which group should retain the party symbol, a rapprochement was reached.
And what happens to the group that doesn’t get the parent party’s symbol?
In the case of the first Congress split, the EC recognised both the Congress (O) as well as the breakaway faction whose president was Jagjivan Ram. The Congress (O) had a substantial presence in some states and satisfied the criteria fixed for recognition of parties under Paras 6 and 7 of the Symbols Order.
This principle was followed up to 1997. However, things changed when the Commission dealt with the cases of splits in the Congress, Janata Dal, etc. — disputes which led to the creation of Sukh Ram and Anil Sharma’s Himachal Vikas Congress, Nipamacha Singh’s Manipur State Congress, Mamata Banerjee’s West Bengal Trinamool Congress, Lalu Prasad’s RJD, Naveen Patnaik’s Biju Janata Dal, etc.
The EC in 1997 did not recognise the new parties as either state or national parties. It felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party, and could lay claim to national or state party status only on the basis of its performance in state or central elections after registration.