Mumbai: When the Election Commission decided to recognise the faction led by Maharashtra Chief Minister Eknath Shinde as the real Shiv Sena and allot it the party’s characteristic ‘bow and arrow’ symbol, it relied solely on one aspect — the number of MLAs and MPs part of the Shinde-led faction.
Besides organisational strength, the EC considered other aspects such as which faction truly supports the party’s stated ideology and its constitution, but decided that neither factor could be taken into account when resolving the dispute between the Shinde-led and Uddhav Thackeray-led factions over who is the real Shiv Sena.
It slammed the Sena’s constitution as “undemocratic” on the grounds that the electoral college that is supposed to elect the party president is nominated by none other than the party president himself.
Similarly, the EC said that while the Shinde faction claimed that the party had drifted from its stated ideology under Uddhav, neither of the two factions had made any significant arguments on the issue.
Moreover, the EC said the test of Sena’s organisational strength, and which faction weighs more on this scale, was found to be “indeterminable and non-conclusive”.
“Through a conjoint and wholesome reading of all aspects, outcome of the tests and embedding the democratic imperative, there is a recognisable basis in the factual material of this dispute, to discern the outcome of legislative wing test as the fulcrum, reflecting both, the fact of the split and majority,” the EC said in its order issued Friday.
In June last year, Shinde engineered a vertical split in the Shiv Sena by leading a rebellion of 40 MLAs to topple the Uddhav Thackeray-led Maha Vikas Aghadi (MVA) government in Maharashtra comprising the Sena, the Nationalist Congress Party (NCP) and the Congress. Shinde then petitioned the EC, claiming to be the real Sena and seeking exclusive rights over the party’s name and symbol — the bow and arrow.
In October, the EC froze the bow and order symbol and temporarily allotted the name ‘Shiv Sena (Uddhav Balasaheb Thackeray)’ and a ‘flaming torch’ symbol to the Thackeray faction, and the name ‘Balasahebanchi Shiv Sena’ to the Shinde faction, along with ‘swords and shield’ as its symbol.
On Friday, the EC froze the name ‘Balasahebanchi Shiv Sena’ and the temporary symbol allotted to the Shinde faction but said the Thackeray faction can continue using the name Shiv Sena (UBT) with the ‘flaming torch’ symbol for the time being.
According to the Election Symbols (Reservation and Allotment) Order, 1968, the EC can rule in favour of a party’s breakaway faction and allow it to claim the party symbol, or not, or neither, after taking into account “all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard”.
“The decision of the Commission shall be binding on all such rivals or groups,” says the order.
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Test of aims, objectives & Shiv Sena constitution
The EC relied on a 1972 case (Sadiq Ali) pertaining to a split in the Congress. The order back then, the EC noted, stated that “criteria other than that of numerical strength or majority could not provide a satisfactory solution” and “the test of majority was a very valuable and relevant test”.
The three tests it relied on in the Sadiq Ali case are the ones the EC also applied to the Shinde versus Thackeray dispute.
The first was the ‘test of aims and objectives and the party’s constitution’.
According to the order, the Shinde group had alleged that the Thackeray-led Sena deviated from the party’s aims and objectives by forming an alliance with parties which subscribe to a different ideology. This, the Shinde group claimed (according to the EC’s order), was the “core point of disagreement and disappointment in the rank and file” of the Shiv Sena.
The Thackeray faction had refuted this charge, saying that according to the party’s aims and objectives, the ideology of the Shiv Sena is that “the party shall be committed to rational secularism, socialism and national integrity” and that the party had not departed from this ethos.
“It was seen that neither of the two factions had made any significant averments on the application of this test and thus, the same was found to be inapplicable in the circumstances of the present case,” the EC noted in its order.
On the test of commitment to the party’s constitution, the EC said that the constitution of the Shiv Sena the Thackeray-led faction was relying on, is “undemocratic”. “The party constitution envisages the president nominating the electoral college that is to elect him,” read the order.
This, the EC said, goes against the spirit of democracy, adding that any reliance on the test of constitution in deciding the Thackeray-Shinde dispute would be undemocratic and catalytic in spreading such practices across parties.
Test of organisational wing
According to the Sena’s most recently amended constitution (2018), its apex representative body is a 13-member ‘Rashtriya Karyakarini’ (national executive). This apex body is elected by a ‘Pratinidhi Sabha’ (council of representatives) which represents the organisational wing of the party, the EC noted in its order.
It added that neither of the two factions provided details on the current strength of this body. The list of office bearers shared with the EC in February 2018, after the last time an internal election was held in the party, does not reflect the names of Pratinidhi Sabha members, it said.
“Thus the test of majority in the organisational wing could not yield determinable or satisfactory finding,” the order read.
Test of majority in legislative wing
The EC said that recognition for a political party is based on the number of votes it polled in elections to the legislative assembly or Lok Sabha, and the number of its elected representatives.
The outcome of the test of majority in the legislative wing clearly shows “qualitative superiority” in favour of the Shinde faction, the EC stated.
It also noted that the 40 MLAs part of the Shinde faction got 76 per cent of the total votes polled in favour of the Shiv Sena in the 2019 Maharashtra Assembly elections.
Similarly, 13 of the 18 MPs supporting Shinde’s claim got 73 per cent of the total votes polled in favour of the Shiv Sena in the 2019 Lok Sabha polls.
“While the application of this test in the legislative wing of the Shiv Sena has given a clear answer as to which faction is enjoying majority support, the application of this test in the organisational wing of the party is found to be yielding indeterminable and non-conclusive outcome,” the EC said.
(Edited by Amrtansh Arora)
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