The Election Commission of India (ECI) ruled on Friday that the faction of the Shiv Sena lead by Maharashtra chief minister Eknath Shinde will inherit the original party’s name and its iconic bow-and-arrow symbol, dealing a major blow to Uddhav Thackeray’s camp.
The 78-page order caps an eight-month-long feud between the two leaders over control of the Shiv Sena, which suffered a vertical split last year when Shinde and 39 other legislators walked out of the party then led by Thackeray, and joined hands with the Bharatiya Janata Party (BJP) to form the government.
“The Commission in exercise of its powers under Article 324 of the Constitution read with paras 15 and 18 of the symbols order 1968 orders that the party name Shiv Sena and the party symbol bow and arrow will be retained by the petitioner faction (Shinde),” read the order signed by all three members of the panel.
The ECI order had strong words for the lack of internal democracy in the party and asked all parties to ensure that their constitutions reflected a democratic ethos. But the ECI decision will almost certainly ignite another protracted legal battle in the Supreme Court, which is currently hearing petitions arising from the split, and the collapse of the coalition government headed by Thackeray.
“This is a victory of the truth and people,” said Shinde.
Thackeray said the EC order was “dangerous for democracy”, and that he would challenge it in the Supreme Court.
The order comes weeks before two bellwether assembly bypolls in Chinchwad and Kasba Peth, and the Mumbai municipal polls scheduled later this year.
ECI followed the procedure laid down in a 1971 Supreme Court judgment, which says such cases must be decided on the basis of a triple test. ECI found that the conclusion of the first two benchmarks were inconclusive. The first test — objectives of the party constitution — was deemed improper because the 2018 constitution of the Shiv Sena was found to be undemocratic and concentrated power in the hands of a few. The second test — that of the majority in the organisational body of the party — was also not considered because the poll panel found that neither side provided accurate details of the composition of internal bodies, and no determinable or satisfactory findings could be ascertained.
Therefore, ECI relied on the third prong — the test of majority in the legislative wing. Here, the poll body found that 40 of the 55 members of legislative assembly backed the Shinde faction, which translated to 76% of the total votes polled by the unified party in the 2019 assembly elections. Moreover, 13 of the 18 Lok Sabha members of the party backed Shinde, which translated to 73% of the total votes polled in the 2019 general elections.
“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 organizational wing of the party is found to be yielding indeterminate and non-conclusive outcome,” the order said.
“Therefore… 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 the majority,” the order added.
ECI said the “mutilated” condition of party constitutions create party structures that fail to inspire the commission’s confidence. As a result, the panel is forced to ignore the test of organizational strength despite being aware of its importance. “This seemingly unjust situation is often the creation of the party itself.”
The EC order listed out four decisions. The first awarded the name and symbol to the Shinde camp. The second said that the name Balasahebanchi Shiv Sena and the two-swords-and-a-shield symbol, given to the Shinde faction in October, will be frozen. The third asked the Shinde faction to amend the 2018 constitution of the party in line with the 1951 Representation of the Peoples Act and conform to internal democracy. The fourth said that the Thackeray faction will be allowed to use the name Shiv Sena (Uddhav Balasaheb Thackeray) and the flaming torch symbol until the completion of the upcoming bypolls on February 26.
The ECI decision marks the latest twist in the protracted political tussle that began last June, when the Maha Vikas Aghadi alliance — comprising the Shiv Sena, Nationalist Congress Party (NCP), and the Congress — suffered a shock loss in the legislative council polls, its second defeat in a week after the Rajya Sabha elections. Shinde and his loyalists drove to a hotel in Surat, where they camped all day, only moving to Guwahati around midnight amid heavy police presence.
Shinde complained that Thackeray had betrayed his father and party patriarch, Balasaheb Thackeray, by allying with the Congress and the NCP. On June 20 last year, Thackeray resigned after it became clear that attempts to initiate anti-defection and disqualification proceedings will not save his government.
The next day, on June 30, Shinde took oath as the new chief minister of Maharashtra as part of an alliance with the BJP. Former CM Devendra Fadnavis took oath as his deputy.
Speaking at a press conference hours after the EC decision, Thackeray accused the poll panel of having become the Union government’s slave. “It may even take away our symbol of flaming torch tomorrow,” he said.
He also appealed to his followers not to give up, and fight the battle to win. “Those who think they have got state recognition for their theft will always remain thieves. Let the thieves rejoice for a few days,” he said.
Shinde, meanwhile, described the EC decision as a victory of truth and the party founder Balasaheb Thackeray’s ideology. “I thank the Election Commission. Majority counts in democracy,” Shinde said. “This is the victory of Balasaheb’s legacy. Ours is the true Shiv Sena,” he added.
In the last week of September, the Supreme Court cleared the decks for ECI to decide Shinde’s petition staking claim over the real Shiv Sena and the party symbol, dismissing a plea by the Thackeray camp to restrain the poll body from adjudicating on the matter.
On October 8 last year, ECI froze the Sena name and symbol ahead of the Andheri East assembly bypoll due on November 3, and asked both sides to choose new names and symbols.
The apex court is currently hearing a clutch of petitions arising from the case, including whether to refer a landmark 2016 judgment to a larger, seven-judge bench.
The Shiv Sena was registered as a political party in 1968, two years after it was founded. It has in the past contested elections on different symbols such as the railway engine, palm trees and a sword and shield. In 1989, four Shiv Sena candidates were elected to the Lok Sabha and later that year, it was given the bow-and-arrow symbol. The 1990 Maharashtra assembly polls were the first to be contested by the party using this iconic symbol.