Almost seven months after Maharashtra Chief Minister Eknath Shinde petitioned the Election Commission to recognise his faction of the Shiv Sena as the ‘real’ Shiv Sena, the EC on Friday ruled in his favour. Following long deliberations and multiple hearings, the EC relied on the “test of majority” to determine which faction would get to use the name ‘Shiv Sena’ and the election symbol ‘Bow and Arrow’ that is reserved for the party under The Symbols (Reservation and Allotment) Order, 1968. The Sadiq Ali case In the so-called Sadiq Ali case, a dispute that arose between two factions of the Congress, the EC in 1971 relied on the test of majority to decide which side should get the party’s name and symbol. It ruled that the faction backed by Indira Gandhi was the real Congress, and its decision was subsequently upheld by the Supreme Court. Two other criteria — a test of party constitution and test of aims and objects — were considered and rejected. “If the number of seats secured by a political party or the number of votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understand as to how the number of seats in the Parliament and State Legislatures held by the supporters of a group of the political party can be considered to be irrelevant,” the Supreme Court said in its order upholding the decision of the EC. “We can consequently discover no error in the approach of the Commission in applying the rule of majority and numerical strength for determining as to which of the two groups.was the Congress party for the purpose of Paragraph 15 of Symbols Order,” the court said. (Sadiq Ali And Anr. vs Election Commission Of India, 1971) The EC cited the Sadiq Ali judgment in its order in the Shiv Sena case on Friday. Sena groups’ arguments Former Union Minister Kapil Sibal, who appeared for the Thackeray camp, argued that the test of majority should not be the sole determining factor. He submitted that the Shinde group’s claim should be tested on the touchstone of the party’s constitution, and that a group that did not follow the Sena constitution should not be recognised. Sibal argued that if Shinde did not agree with the party constitution as amended in 2018, under which he himself had been appointed an office-bearer, then he had no right to claim the symbol. He should instead form his own party, Sibal said. The 2018 amendment to the Sena constitution gave the party president, Uddhav Thackeray, the power to appoint office-bearers. But the EC said in its order that this amended document had not been submitted by the party, which violated the criteria for parties registered under the Representation of the People Act, 1951. The Shinde faction argued that the amended constitution had reversed the democratic reforms introduced in 1999 under the leadership of Sena founder Balasaheb Thackeray, and that the office-bearers appointed after the 2018 amendment could not be the criteria to judge the support for each side. On the issue of aims and objects, Shinde argued that Thackeray was running the party in a manner that ran counter to Balasaheb’s ideology. Thackeray said the Sena’s constitution committed the party “to rational secularism, socialism and national integrity”, and that he had followed these principles. With both sides claiming to adhere to the principles of the party constitution, the EC found it could not rely on the test of aims and objects. Eventually, it sided with Shinde, finding he had the support of 40 out 67 MLAs and MLCs, and 13 out of 22 MPs. Inner party democracy The EC observed in its order that the absence of internal democracy in parties was the cause of many of the disputes that landed at its door. The EC said that the requirement under the RP Act for parties to have a written constitution and to submit an undertaking that the constitution is democratic, is meant to promote internal democracy. The importance of a democratic organisational structure is felt when there is a dispute, it said. “An organisation ought to have its own mechanism to deal with internal disputes. A political organisation that is performing the difficult role of aggregating the often-differing aspirations of the people that it seeks to represent by democratic contest ought to give much more importance to internal democratic structures which have the ability to resolve disputes democratically,” the EC said.
