EC recognises Shinde faction as real Shiv Sena, allots name & symbol

Dealt a blow, Thackeray, speaking to reporters in Mumbai, said “They (Shinde faction) have stolen our Bow and Arrow symbol, but people will avenge this theft.” Calling the EC decision “very dangerous for democracy”, he said it would be challenged in the Supreme Court.

Shinde hailed the EC decision, calling it “the victory of ideologies of Balasaheb and Anand Dighe, of our workers, MPs, MLAs, public representatives and lakhs of Shiv Sainiks. It is a victory for democracy”.

The EC ruling comes at a time when the Supreme Court is still to decide on the dispute over the powers of the Deputy Speaker to disqualify rebel Shiv Sena MLAs when a notice for his own removal has been given.

After the Election Commission’s order, members of the Eknath Shinde camp celebrate in Tembhinaka on Friday (Express/Deepak Joshi)

In its 77-page 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 said the 40 MLAs of the Shinde group had got 76% of the votes polled by the 55 Shiv Sena MLAs in the 2019 elections, as opposed to 23.5% for the MLAs in the Thackeray camp.

The EC 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. It also 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.

The EC ordered that the party name and symbol of ‘Bow and Arrow’ would be retained by the Shinde group and the name and symbol that had been allotted to it last year as an interim measure – Balasahebanchi Shiv Sena and ‘two swords and a shield’ – would be frozen and not used.

The EC also ordered Shinde to amend the 2018 Constitution in line with the Representation of the People Act, 1951 and the EC’s guidelines on internal democracy of parties.

For the ongoing by-elections to the Chinchwad and Kasba Peth Assembly constituencies of Maharashtra, the EC said the Thackeray faction could continue to use the interim name and symbol – Shiv Sena (Uddhav Balasaheb Thackeray) and ‘flaming torch’.

“The paradox of India being the world’s largest democracy and its political field being occupied by some parties which are being treated as fiefdoms is disconcerting,” the EC noted in its order.

The EC said that during the course of the dispute it learned that the party Constitution had been amended in 2018 to give the Shiv Sena Paksha Pramukh powers to appoint most office-bearers. Thackeray had been elected to the post in 2018 for five years, while Shinde was appointed “Shiv Sena leader”. Therefore, the EC said, relying on the “test of party Constitution” would be “undemocratic and catalytic in spreading such practices across parties”.

The petition was filed by Shinde on July 19, 2022, in which he said he was the “Shiv Sena Mukhya Neta” and that there was dissatisfaction among Shiv Sena members with the “corruption in the Maha Vikas Aghadi Government and the alliance of Shiv Sena with political parties of different ideology”.

Shinde’s petition had said that he had requested Thackeray to change his way of working and re-align it to the ideology of Shiv Sena founder and Uddhav’s father, Balasaheb Thackeray.

The dispute came to a head when both groups held rival meetings of the Shiv Sena Legislature Party on June 21, 2022, with 24 out of the 55 MLAs attending Thackeray’s meeting to pass a resolution to remove Shinde as the leader of the legislature party. The Shinde group with 34 MLAs, including four independents, passed a resolution re-affirming Shinde as the leader.

After calling for documents from both sides, the EC held the first hearing in the dispute on December 12.

Former Union Minister and lawyer Kapil Sibal argued on behalf of Thackeray that the test of majority was not the sole test, but the test of the Constitution was also relevant.

Rajya Sabha MP and lawyer Mahesh Jethmalani argued for Shinde that he had the support of 40 MLAs and 13 MPs. He cited the precedent set in the EC’s ruling in the Sadiq Ali case of 1971, in which the EC used the test of majority in the legislature and organisational wings of the Congress to decide a dispute between two factions – one led by Indira Gandhi under the presidentship of Jagjivan Ram, and the other by S Nijalingappa. The EC’s decision holding the group led by Gandhi as the real Congress was upheld by the Supreme Court.

During the hearings, the Thackeray group argued that the matter of disqualification of Shinde and his MLAs was still pending before the Maharashtra Assembly Speaker. The EC said the Supreme Court and Delhi High Court had not stayed its proceedings and that in the Sadiq Ali case, it was established that the EC was the authority to decide such a dispute.

While the Thackeray group said the Shinde faction had not provided any proof of a split in the party, the EC said the fact that both groups had held separate legislature party meetings on June 21 indicated the rift.

The EC said the 2018 amendment to the party Constitution had undone the introduction of democratic norms in the constitution of 1999 “at the insistence of the Commission”. It said the Rashtriya Karyakarini was the apex body within the party as per the 2018 Constitution with 13 members. However, it found that the body was elected by a “largely appointed Pratinidhi Sabha”.

Reiterating the need for inner party democracy, the EC said the absence of internal democratic structures was leading to the dispute being determined by the EC.

“However, by the time a dispute comes to the Commission, the party Constitutions are often seen to have been mutilated to undemocratically appoint people from a coterie as office-bearers without any election at all. Such party structures fail to inspire confidence of the Commission and the Commission is forced to ignore the numerical strength of opposing factions in the Organisational Wing altogether despite being conscious of its importance and role as the building block of the party,” the order said.