The intense battle between Uddhav Thackeray and Eknath Shinde over the Shiv Sena party symbol prompted the constitution bench on Thursday to articulate some key principles for the Election Commission of India to take note of in deciding disputes between two rival factions of a political party.
As the first legal principle, the bench, led by Chief Justice of India Dhananjaya Y Chandrachud, declared that pendency of disqualification proceedings against members of a rival faction in a political party will not prevent ECI from deciding a dispute before it under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, for allotment of the party symbol.
The top court rejected Thackeray’s plea that the constitution bench should lay down a “constitutional sequence” by holding that proceedings under the Tenth Schedule (anti-defection law) must be adjudicated before the dispute under the Symbols Order is determined.
“To hold that the ECI is barred from adjudicating petitions under Paragraph 15 of the Symbols Order until the ‘final adjudication’ of the disqualification petitions would be, in effect, to indefinitely stay the proceedings before the ECI. This is because an order of the Speaker attains finality only after all avenues for appeal have been exhausted or are barred by the passage of time. The time that it would take for an order of the Speaker to attain finality is uncertain,” it noted.
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Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority, held the bench, adding: “The ECI cannot be prevented from performing its constitutional duties for an indefinite period of time.”
That said, the court went on to point out that an election symbol remains frozen till the time ECI finally decides the dispute between the two factions. “It may well end the association between the reserved symbol and the political party in the minds of the electorate. This will no doubt be a blow to the political party which is lawfully entitled to the symbol reserved for its use. Therefore, the ECI must render a decision as to which group constitutes that political party,” it said.
Although nothing prevents an MLA facing disqualification proceedings under the anti-defection law from approaching ECI for the allotment of a party symbol, the court said, the poll body must look beyond the test of legislative majority to decide the contention in favour of one of the rival factions.
“The essence of the decision of the ECI cannot be understood as solely a determination as to who is entitled to the symbol for the purposes of election. While that is the outcome of the decision under Paragraph 15, the substance of the decision is the determination as to which of the groups is the lifeblood of the recognised political party. the ECI determines who the ‘real’ political party is and the symbol is allotted as a consequence of this decision,” said the bench.
In arriving at this decision, the court noted, it is not necessary for ECI to rely on the test of majority in the legislature alone. “In cases such as the present one (Thackeray Vs Shinde), it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order. The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test,” said the bench.
It added that ECI must apply a test which is best suited to the unique facts and circumstances of the case before it. “The parties in the dispute before the ECI are free to propose a suitable test and the ECI may either apply one of the tests proposed or fashion a new test, as appropriate. The ECI must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions,” the court further noted.
In the present case, Shinde had approached ECI under Paragraph 15 of the Symbols Order for the allotment of the bow and arrow symbol of Shiv Sena to the faction led by him. By a decision on February 17, ECI ruled that Shinde’s faction will inherit the original party’s name and its symbol, capping an eight-month-long feud between the two leaders over control of the regional party that 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 BJP to form the government.
ECI followed the procedure laid down in a 1971 Supreme Court judgment in Sadiq Ali Case, 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.
To be sure, Thackeray has challenged ECI’s decision before the top court and the appeal is pending.
