EC recognizes Shinde faction as real Shiv Sena

Subject: Polity

Section: Elections

Concept:

The Election Commission decided that the Shiv Sena faction led by Maharashtra Chief Minister Eknath Shinde was the real Shiv Sena as opposed to the group led by former CM Uddhav Thackeray.
It said the party name and symbol of ‘Bow and Arrow’ would be retained by the Shinde group.
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.

Fight for symbol when party splits

When a prominent party splits, a tussle often ensues for its election symbol. This symbol is frequently considered as the embodiment of the identity of the party.
Examples: In October 2021, the ECI had frozen the ‘Bungalow’ election symbol of the Lok Janshakti Party (LJP). The LJP had split in June 2021.
Before that, tussles over the election symbol had been witnessed in 2017 after the Samajwadi Party (Cycle) and the AIADMK (Two leaves) split.

How does the ECI decide who gets the symbol?

It is decided as per the provisions of the Symbols (Reservation and Allotment) Order, 1968. This rule applies to disputes in recognised national and state parties.
Para 15 of the Symbols Order, 1968 empowers EC to decide on the claim of rival factions in case of split.
EC decides on the issue after taking into account all the available facts and circumstances of the case and hearing their representatives.
The decision of the Commission shall be binding on all such rival sections or groups.
For splits in registered but unrecognised parties, the ECI usually advises the warring factions to resolve their differences internally or to approach the court.

Other ways apart from the test of majority

In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions.
Whenever the EC could not test the strength of rival groups based on support within the party organisation (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.

What happens to the group that doesn’t get the parent party’s symbol?

Before 1997, EC used to recognise the party, not getting the symbol, based on the criteria fixed for recognition of parties under Paras 6 and 7 of the Symbols Order.
e., if the breakaway party had support of sufficient MPs/MLAs as per the criteria, it was recognised by EC as National/State Party.
The EC in 1997 felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party.
These parties could lay claim to national or state party status only on the basis of its performance in state or central elections after registration.

EC decision on this case

EC analysed three tests mentioned in the Sadiq Ali case, 1972
The three tests were:
Test of Aims and Objects of the Party
Test of Party Constitution, and
Test of Majority
EC held that the Test of Party Constitution for determining the present dispute case will be undemocratic
While refusing to apply this test, EC held the 2018 changes to the Shiv Sena party constitution as undemocratic since the part has not submitted an amended copy of its constitution.
EC was of the view that if such test is applied in the present case, it would be catalytic in spreading such practices across parties.
Majority in organisational party structure was inconclusive
The details of organisational structure were not mentioned by any of the faction.
Hence, proving the test of majority in organisational party structure was inconclusive.
Finally, EC used the test of majority in the legislative wing of the party.
Since, the test of majority in organisational party structure was inconclusive, EC had to resort to the test of majority in the legislative wing of the party.
This test showed qualitative superiority to the Shinde faction which has support of 40 out of 67 Sena MLAs & MLC and 13 out of 22 Sena MPs.