Opinion Former Chief Election Commissioner S Y Quraishi writes: Shiv Sena debacle must stand as an important lesson

In concurrence with many observers and commentators, I also believe that it would have been better if the EC, which took over eight months to reach its verdict, had waited for a few more days as the Supreme Court had already listed the disqualification case against 16 MLAs of the Shinde faction for hearing from February 21st. The SC verdict can have a serious bearing on the main case. What if it finds disqualification of the 16 MLAs by the Deputy Speaker as valid? It can completely alter the equation/numbers’ game.

It is important to recall what Section 15 of the Symbols Order, 1968 lays down: “When the Commission is satisfied on information in its possession, that there are rival sections or groups of a recognised political party, each of whom claims to be that party, the Commission may … decide that one such rival section or group… is that recognised party, and the decision of the Commission shall be binding and on all such rivals sections or groups.” Using the power under this Section, the ECI applies the test of majority support among the members of the “organisational and legislature wings” of the party as the critical test to decide the dispute. In its very first test in 1969, EC had used this formula which was upheld by the Supreme Court in its judgment in Sadiq Ali v. Election Commission of India, 1971 and in several subsequent judgments.

In its detailed 77-page well reasoned order, the three-member Commission relied on the test of majority, which the Shinde faction was able to prove it had with the support of 40 out of 67 MLAs and MLCs in Maharashtra, and 13 out of 22 MPs in both houses of Parliament. The EC found that it could not rely on the test of majority in the organisational wing of the party as claims of numerical majority by both factions were not satisfactory. It further decided that the “Test of Party Constitution” could not be relied upon as the party had not submitted a copy of its amended constitution in 2018 and the document itself had been changed to become more undemocratic.

The main reason why the Uddhav-led Shiv Sena faction lost the “Test of Party Constitution” was that its 2018 amendment of the constitution conferred widespread and unchecked powers to a single person, the party president, to make appointments of the office-bearers. The constitution envisages the president to be elected by an electoral college whose members themselves are appointed by the president, making the very process of election preposterous and anti-democratic.

The EC went on to say that MLAs backing Shinde got nearly 76 per cent of the votes polled in favour of the 40 winning, whereas the MLAs backing the Uddhav-led faction of Shiv Sena received just 23.5 per cent of the votes. This in my view is not only unnecessary but also logically fallacious since MLAs may have switched loyalties for various considerations including extraneous, but this does not mean voters endorse this volte face. For voters’ preference the ultimate test is election.

At this point, it is important to point out the significance of inner-party democracy, an aspect that is both under-studied and undermined in its consequential import to the fate of the electoral parties and of the democratic system at large. In the Shiv Sena order as well, the EC underlines the lack of inner-party democracies in political parties and said it was the root cause of many of the cases that land at its doors. In fact, the requirement under the Representation of People Act that political parties have a written constitution and submit an undertaking stating that the constitution is democratic is meant to promote inner-party democracy. The present Shiv Sena debacle is an important lesson to all the other parties of India, both at the national and state level.

While the party name and the iconic symbol has been lost by the Uddhav faction, the equally consequential fight for the control over the local shakhas of the Sena, which have been integral to the party’s organisational structure since its inception, will gain momentum in the coming days. The issue has already been raised in the SC.

Lawyers for Thackeray pleaded before the SC that the Shinde camp would take over the party’s bank accounts and properties. SC took an assurance from Shinde’s lawyers that the winning faction would not take any precipitate action till the court has heard both parties. In my view, once EC has decided which faction is the party, there is nothing left to decide where the bank accounts and properties will go. Even if the EC has no specific power to adjudicate on that, the spirit of the judgement in Rule 15 is, once it’s decided which faction is the party, the winner takes it all. What is left for any civil court and even the apex court to decide? In the very first judicial test of the Symbols Order, a three-judge Supreme Court Bench of Justices H R Khanna, K S Hegde and A N Grover clarified the purpose of Paragraph 15 in these words: “The symbol is not a property to be divided between co-owners…”

Finally, although the EC has given its verdict on who the real Sena is, the ultimate verdict on the question of inheriting Sena’s legacy will only be determined by the two parties’ performance in the upcoming elections. Even if Thackeray has the advantage, unfortunately for him, he may have to contest with a new party which he will have to register, with yet another new symbol to be allotted. That may not be a losing proposition if we recall Indira Gandhi romping home twice, both times with a new party name and symbol.

The writer is the former Chief Election Commissioner of India and the author of An Undocumented Wonder — The Making of the Great Indian Election