Supreme Court To Hear Uddhav’s Plea Against Election Commission’s Order On Shiv Sena: Implications Of Past Faction Disputes – News18

On July 31, the Supreme Court will hear a petition filed by Shiv Sena (UBT) leader Uddhav Thackeray, challenging the Election Commission of India’s (ECI) decision to declare the Eknath Shinde group of the Shiv Sena as the “real” Shiv Sena. recognized as such.

In June 2022, the Shiv Sena split into two factions. On February 17, 2023, the ECI recognized the Eknath Shinde group as the “real” Shiv Sena” and allowed them to use the official “bow and arrow” symbol and the “Shiv Sena” name.

While the group led by Uddhav Thackeray was named “Shiv Sena (Uddhav Balasaheb Thackeray)” and was allotted the symbol of “Flaming Torch” to be used in the by-election held on 23 February.

Following the ECI’s decision, Uddhav Thackeray moved the apex court seeking a stay on the ECI’s decision. However, the Supreme Court refused to stay the ECI order.

The split of Shiv Sena raised two legal and constitutional questions. The first question was whether the Eknath Shinde group would face disqualification under the anti-defection law enshrined under the 10th Schedule of the Constitution. The second question was which group would be recognized as the “real” Shiv Sena and would have the right to retain the “real” symbol.

To answer the first question, it is important to note two points: Firstly, the issue of disqualification is addressed through the 10th Schedule of the Constitution, and is a subject that falls within the jurisdiction of the Supreme Court. After the 91st Constitutional Amendment Act of 2003, if two-thirds of the members of a party break away from the party and merge with another party or form a new party, then the anti-defection law will not apply to it.

However, the present case pertains to the allotment of party symbol and name. In this regard, the test would be the famous case titled “Sadiq Ali and others v. Election Commission of India”.

Sadiq Ali and others Vs Election Commission of India

1969 saw a split in the Congress Party, following differences over the choice of Congress candidate for the presidency of India. The two groups came to be known as Congress ‘O’ and Congress ‘J’.

On January 15, 1970, a letter was sent by the ECI to the Secretary of Congress ‘J’ as well as the Secretary of Congress ‘O’, stating that “a dispute appears to have arisen that the two groups Which of the following is a recognized political group” for the purpose of the Election Symbols Order the party is to be known as the “Indian National Congress” and the ECI was required to take a decision in the matter in terms of para 15 of the Election Symbols Order 1968 .

Paragraph 15 of the Order empowers the ECI to decide the claims of breakaway groups or rival sections of a recognized political party.

It reads, “When the Commission is satisfied from the information available with it that there are rival sections or groups of any recognized political party, each of which claims to be that party, the Commission shall, taking into account all available facts and circumstances, decide, in the matter and after hearing such representatives of those sections or groups and other persons as may wish to be heard, that such rival section or group or any such rival section or group is not a recognized political party and the decision of the Commission shall be binding on all such rival classes or groups.”

A statement was presented by Congress ‘J’, in which 229 out of 284 Congress members in the Lok Sabha and 106 out of 147 Congress members in the Rajya Sabha pledged their allegiance to the Congress, the government headed by Indira Gandhi as Prime Minister declare. The Congress led by Jagjivan Ram as the President was called Congress ‘J’.

In contrast, the Congress ‘O’ claimed the allegiance of 65 members of the Lok Sabha and 40 members of the Rajya Sabha. The Congress Legislature Parties of Maharashtra, Madhya Pradesh, Andhra Pradesh, Rajasthan, Assam, Haryana, Jammu and Kashmir, Himachal Pradesh and Tripura announced their support to the Congress Governments and Congress ‘J’ in those states.

The Speaker of the Lok Sabha and the Chairman of the Rajya Sabha recognized the Congress ‘J’ in Parliament as the party that was in power and ran the central government. Similarly, the ECI also recognized Congress ‘J’ as the original Congress party, a decision which was upheld by the apex court.

In the judgement, the top court made two important points which established that the group which enjoys majority support among the members of the “organisational and legislative wing” would be considered as the “parent” party.

The judgment said, “There can hardly be any dispute that a substantial majority of members, both in the legislative wing and the organizational wing of the Congress, supported Congress ‘J’. Since INC ‘J’ is a democratic organization, the test of majority and numerical strength, in our opinion, was a very valuable and relevant test. Whatever may be the position in the government or any other system of organization, numbers have relevance and importance in a democratic government system or political system and it is neither possible nor acceptable to ignore them. In fact it is the view of the majority which in the final analysis proves to be decisive in a democratic set up.

It further states, “It may be mentioned that as per paragraph 6 of the Symbols Order, the factors that may be taken into account in treating a political party as a recognized political party are the number of seats secured by that party; Is.” The number of votes polled by candidates contesting elections to the House of the People or State Legislative Assembly or by such party.”

“If the number of seats secured by a political party or the number of votes cast in favor of the candidates of a political party can be a consideration relevant to the recognition of a political party, one is unable to understand how a political party The number of seats held by a group of supporters in Parliament and State Legislatures may be considered relevant. In the result, we find no error in the approach of the Commission in applying the rule of majority and numerical strength to ascertain which of the two groups, Congress ‘J’ and Congress ‘O’ was the Congress party. The purpose of paragraph 15 of the Symbol Order,” the order said.

When a similar split occurred in the party in 1995, resulting in the formation of two factions headed by PV Narasimha Rao and ND Tiwari respectively, Arjun Singh filed a petition before the ECI, demanding that the chairmanship of ND Tiwari The group was recognized as the real Indian National Congress.

Applying the majority test upheld by the Supreme Court’s majority judgment (2:1) in the Sadiq Ali case, the ECI decided that the group headed by PV Narasimha Rao was the Indian National Congress, as it enjoyed party status. Improved majority support in both the organizational and legislative branches.

In the present case of Shiv Sena also, the Election Commission applied the same test. The Shinde group can prove the support of 40 out of 67 MLAs and MLCs in Maharashtra and 13 out of 22 MPs in both the Houses of Parliament.

The ECI, in its 77-page order, highlighted that the 40 MLAs of the Shinde group got 76% of the votes cast by the 55 Shiv Sena MLAs in the 2019 elections, while the Thackeray camp MLAs got 23.5%.

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