The Election Commission of India on Friday decided that the faction of the Shiv Sena led by Maharashtra chief minister Eknath Shinde would get the party’s original name and symbol, considering the majority it enjoyed among the party’s MLAs and MPs.
The party split in June last year after cross-voting by Sena MLAs in favour of the BJP in the legislative council polls in Maharashtra. Then party leader Uddhav Thackeray — who was in power in alliance with the Congress and the NCP — quit as chief minister. His rival within the party, Shinde, formed the government with the support of the BJP.
The matter went to the Supreme Court, which said the EC would decide which faction, if any, would be recognised as the original party. The apex court continues to hear a dispute over whether the Maharashtra deputy Speaker has the power to disqualify alleged defectors when he himself faces a motion of disqualification. There is no embargo by the court on the EC deciding the original dispute over who gets recognition.
In its order, the EC highlighted the undemocratic functioning of the party, which it said compelled the poll panel to rely on the “test of majority” rather than the party constitution.
The Supreme Court’s 1972 verdict in Sadiq Ali versus the EC lays down three tests for disputes under the Symbols Order, 1968 — aims and objectives, party constitution and majority.
The EC order on Friday says: “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. For a truly functioning democracy, it is important that one of the key stakeholders i.e., the political parties, are run in a democratic manner and this in turn can be ensured only if the constitution being adopted by them does not allow concentration of power in the hands of the few. Therefore, any reliance on the ‘Test of Party Constitution’ for determining the present dispute case will be undemocratic and catalytic in spreading such practices across parties.”
The observation was made considering that the Sena had not provided a list of its office-bearers to the EC as and when they were elected, and the party had amended its constitution to undo the democratic norms introduced in 1999 on the EC’s prodding. This made the “party akin to a fiefdom”.
Shinde’s group proved that it had the support of 40 out of 55 MLAs, and 13 out of 22 MPs. Thackeray’s faction was supported by 15 MLAs, all 12 MLCs and seven MPs.
Thackeray’s group has been allowed to retain the temporary name Shiv Sena (Uddhav Balasaheb Thackeray) and the flaming torch symbol for the ongoing Assembly by-elections in Maharashtra. The order does not elaborate on the fate of Thackeray’s faction after the by-elections.
In the past, legislators from a faction that lost a dispute were allowed to be recognised as members “unattached” to a party in the legislature.
The EC order said: “The party name ‘Shiv Sena’ and the party symbol ‘Bow and Arrow’ will be retained by the Petitioner faction (of Shinde).... The Petitioner is directed to amend the 2018- constitution of the Party in line with section 29A of the RP Act, 1951... conforming to internal democracy.”
Shinde told reporters in Mumbai: “It is a victory of the 40 MLAs, 13 MPs and hundreds, lakhs of Shiv Sainiks. I thank the EC.”
PTI quoted Thackeray as saying at a media conference in Mumbai in Marathi: “The EC’s decision is dangerous for democracy. No democracy is left in India; the PM should declare that dictatorship has started in country…. We will surely go to the Supreme Court against this EC order. We are sure that the apex court will set aside this order....”
The EC’s order pre-empts a disagreement by Thackeray and says: “This seemingly unjust situation is often a creation of the party itself which failed to create a robust constitution that provides for democratic structures within the party and also to protect the constitution when it was amended to allow undemocratic methods of appointments.”
