Journalism of Courage
The Election Commission of India (ECI) on Friday (February 17) evening ordered that the Eknath Shinde camp of the Shiv Sena will retain the official name and the ‘bow and arrow’ symbol of the party, The Indian Express reported.
Meanwhile, the Uddhav Thackeray-led faction will retain the interim party name Shiv Sena UBT and the flaming torch as its poll symbol, the poll body also said.
The ECI, in its 78-page order, pointed out that the current constitution of the Shiv Sena is “undemocratic”.
“It has been mutilated to undemocratically appoint people from a coterie as office bearers without any election at all. Such party structures fail to inspire confidence,” it mentioned.
The order has come just days ahead of the February 26 by-polls in two Maharashtra Assembly seats – Kasba Peth and Chinchwad.
In October 2022, the poll body froze the symbol and party name and allotted new interim names and symbols to both factions of Shiv Sena. A month later, the Thackeray-led faction moved a writ plea in the Delhi High Court against this decision. However, the plea was dismissed by the court.
On the question of a split in a political party outside the legislature, Para 15 of the Symbols Order, 1968, 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…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). For splits in registered but unrecognised parties, the ECI usually advises the warring factions to resolve their differences internally or to approach the court.
The first case to be decided under the 1968 Order was the first split in the Indian National Congress in 1969. After the party old guard led by K Kamaraj, Neelam Sanjiva Reddy, S Nijalingappa, and Atulya Ghosh, known as the Syndicate, expelled Indira Gandhi 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.
What happened 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 seeking recognition 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 four per cent in the three states.
Is there a way other than the test of majority to resolve a symbol dispute?
In almost all such disputes 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 switched over to Shinde’s side.
Whenever the ECI 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 has sought to fall back on testing the majority only among elected MPs and MLAs.
And what happens to the group that doesn’t get the parent party’s symbol?
In the case of the first Congress split, the ECI recognised both the Congress (O) and 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 ECI dealt with the splits in the Congress, Janata Dal, etc. that 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 ECI 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. It introduced a new rule under which the splinter group — other than the group that got the 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.
