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Which is the ‘real’ Shiv Sena? Answer lies with the Constitution and Supreme Court

Menaka Guruswamy writes: There is a legal and constitutional framework for when a party splinters and rival factions assert themselves as the recognised political party, which is likely to come into play in the battle between Uddhav Thackery and Eknath Shinde

Menaka Guruswamy writes: There is a legal and constitutional framework to deal with issues when a party splinters and rival factions assert themselves as the recognised political party. (Illustration: CR Sasikumar)

A cornerstone of India’s democracy is its culture of functioning political parties. There are reportedly 2,598 registered political parties, eight national parties and 50 state parties. While parties may exist for a variety of reasons, many aim for electoral success. Therefore, the regulation of these parties and elections in the country is a crucial segment of India’s constitutional imagination. Yet, the proliferation of political parties also means that established parties splinter. A battle ensues for recognition of one faction or group as the recognised political party and securing the party symbol.

Most recently, the Shiv Sena has been split between the Uddhav Thackeray and the Eknath Shinde factions. In anticipation of future challenges as to who has control over the party, including its symbols and name, a letter has been sent to the Election Commission from the Sena National Executive, confirming that Uddhav Thackeray continues to be the party president (Paksha Pramujkh). The party symbol (a bow and arrow) will be a crucial facet of the gains to whichever faction the Commission affirms is the recognised party. What would such a legal challenge for recognition entail?

There is a legal and constitutional framework to deal with issues when a party splinters and rival factions assert themselves as the recognised political party. As always, the foundation lies in the Constitution. Article 324 of the Constitution provides that the superintendence, direction and control of elections is vested in the Election Commission (henceforth Commission). Such elections would include those to Parliament, state legislatures, and for the offices of President and Vice-President. Pursuant to the Conduct of Election Rules, 1961, Rule 5 specifies that the Commission shall specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice will be subject.

The Election Symbols (Reservation and Allotment) Order 1968 provides for the choice and allotment of symbols in Parliamentary and Assembly constituencies and for recognition of political parties and matters connected. Finally, Paragraph 15 of this Order specifies that the Commission has the power to recognise as the party, from amongst splinter groups or rival sections, “after taking into account all available facts and circumstances of the case” and “after hearing representatives”.

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The fight over party symbols is not a new one and continues to be a significant political as well as legal issue. For, the symbol of a party is one of extreme relevance to political survival. For many Indian voters who do not read, the symbol is their association with the party when they exercise their franchise. Hence, the importance given to the symbol of the party.

The classic case on recognition of a faction and accrual of the party symbol is Sadiq Ali v the Election Commission of India (1972). Here, the Supreme Court was confronted with the case of the Indian National Congress which had split into two factions. The Indian National Congress (J) was led by Jagjivan Ram and the Indian National Congress (O) functioned under C Subramanium. Both groups claimed leadership of the same party and its symbol “Two Bullocks with Yoke on”. This was the symbol of the party before Indira Gandhi chose the straight palm that continues with the Indian National Congress. The urgency was due to the impending presidential elections, necessitated after the death of President Zakir Hussain.

As is the nature of such litigation, each faction approached the Commission. They filed amongst other documentation letters from each purported president of the party, party constitutions, and statements from party members. This included statements of allegiance from members of Parliament and members of the state legislatures. This was a time when the Congress was in power in many states. Eventually, the Commission ruled in favour of Congress (J) being the recognised political party.

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Justice H R Khanna, writing for the Court, set forth the jurisprudence that remains the law even in contemporary times. The judge relied on the figures presented to the Commission and found that a substantial majority of the members of the Congress in both its legislative wing as well as the organisational wing supported the Congress (J). He concludes that “numbers have… importance in a democratic system of government or political set up, and it is neither possible nor permissible to lose sight of them. Indeed, it is the view of the majority which in the final analysis proves decisive in a democratic set-up.”

Further, the court did not seek ascertainment of the wishes of all the primary members of the party. However, like the Commission, the apex court accepted that the views of the All India Congress Committee (AICC) and delegates to it would reflect the opinions of the primary members of the party. Significantly, Justice Khanna also concludes that paragraph 15, which gives the Commission power to settle such disputes pertaining to symbols between factions of a party, is entirely legal, for this power accrues from Article 324 that creates the Commission and vests in it the power of superintendence over elections.

In India’s 72nd year as a constitutional democracy, the free and fair regulation of political parties by the Election Commission and the courts is a crucial part of our political success as a nation. The Supreme Court’s thoughtful judgment decades ago is a realisation of the importance accorded to judicial oversight of our political parties.

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(The writer is a senior advocate at the Supreme Court of India)

First published on: 08-07-2022 at 19:40 IST
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