Explainer: How will the Election Commission decide which is the real Shiv Sena?

After Eknath Shinde ousted Uddhav Thackeray to become Maharashtra chief minister on June 30, factions led by each of these leaders have been claiming that they represent the real Shiv Sena. On July 19, Shinde’s faction approached the Election Commission of India to get permission to use the party’s bow and arrow symbol.

The Election Commission’s decision will determine which group will be allowed to call itself the Shiv Sena.

Experts point out that this is a unique situation since there is no clear split in the party. While Shinde has the support of the majority of the party’s parliamentarians and state legislators, the support of the organisational wing – such as the party cadre and Shiv Sena’s local leaders – seems to be divided. Along with this, disqualification notices issued by Deputy Speaker of the Maharashtra Assembly Narhati Zirwal to several Shiv Sena MLAs have complicated matters more.

All these matters are pending before the Supreme Court, which is likely to hear them next on August 22.

What is happening presently?

The trouble in the Shiv Sena, which ruled Maharashtra as part of the three-member Maha Vikas Aghadi alliance, first became apparent on June 21, when Shinde and a handful of party MLAs sought shelter in a hotel in Surat in Bharatiya Janata Party-ruled Gujarat. Over the next few days, even more Sena MLAs joined the rebels before flying out hurriedly to another BJP-ruled state, Assam.

On June 30, Shinde was sworn was as Maharashtra’s chief minister, with the BJP’s Devendra Fadnavis as his deputy. It took more than 40 days for the two-member cabinet to be expanded.

The Shiv Sena has 55 MLAs in Maharasthra and 18 MPs in Lok Sabha. Shinde claims to have the support of 40 MLAs and 12 MPs, while Thackeray claims support from the rest.

On July 3, when a new Speaker was to be elected to the Maharashtra Assembly, each side issued itsown whip instructing MLAs whom to vote for. The majority of the Shiv Sena MLAs followed the whip issued by the Shinde faction, which led to BJP’S MLA Rahul Narvekar being elected as Speaker. Narvekar promptly recognised a new group leader and a new whip for Shiv Sena, both from the Shinde faction.

On July 19, the Shinde faction also approached the Election Commission to allow them to use the party’s symbol. On July 22, the Election Commission directed each faction to submit documents to prove that they had the support of the majority of the party members by August 8.

How does the Election Commission decide?

The Election Commission is the body that administers party symbols and adjudicates disputes over these symbols. Paragraph 15 of the Election Symbols (Reservation and Allotment) Order from 1968 says that in case of a dispute, the commission will look at “all the available facts and circumstances of the case” and hear all rival factions before deciding who can lay claim to the party.

While doing so, the Election Commission looks at who has the majority among both the elected representatives and the organisational wing of the party. For instance, in 1969, the Congress party split into factions led by Jagjivan Ram and S Nijalingappa. Each side claimed the party’s symbol.

The Election Commission said Ram could use the symbol as he had the majority both in the organisational and the legislative wings of the party. Apart from elected representatives at the Central and state level, he had the support of the majority of members of the All India Congress Committee – the central decision-making body of the Congress – and the delegates to it. This reflected “by and large the views of the primary members [of the Congress]”, the court held.

The Nijalingappa faction challenged before the Supreme Court. But the Supreme Court upheld the Election Commission’s decision. It said that the test applied by the Election Commission to determine who had the majority was the correct one.

How will this be decided in the present case?

The present case is unprecedented, experts point out. In previous party splits, one group had a majority across a party’s organisational and legislative wings. However, in this instance, while Shinde has the legislative majority, it is unclear which faction has the majority support in the organisational wing.

Therefore, the Election Commission will have to go by the Election Symbols (Reservation and Allotment) Order from 1968 and look at all available facts and hear all rival sections and then arrive at a decision. The party that loses may be asked to register a new party.

However, the matter is further complicated by various other proceedings pending before the Supreme Court and the Assembly relating to the defection of Shiv Sena MLAs, the election of a new Speaker and the recognition of new whips, among other issues.

What are the other complications?

On June 25, when Thackeray was still chief minister, the Deputy Speaker served disqualification notices to 16 MLAs after they had joined Shinde’s faction (Shinde was among those who was served a notice). This was challenged by the 16 legislators before the Supreme Court, which extended the time allotted to the legislators to reply to these notices.

On July 3, both factions issued disqualification notices against the other faction for disobeying their whips while voting for the Speaker. The issue of which faction’s whip will be the official party whip in the Assembly is also pending before the court.

On July 11, the Supreme Court asked the Maharashtra Speaker not to decide on any disqualification notices against Shiv Sena MLAs.

Then, on July 25, Thackeray moved court, contending that the Election Commission could not decide who can stake claim to the party while matters related to disqualification are pending. He argued that a disqualified legislator cannot move to the Election Commission and seek to claim the party’s symbol.

However, Shinde has claimed that Election Commission can decide on this matter as it is an intra-party dispute over a party’s leadership and, thus, defection law is not applicable. The Election Commission has also contended that defection law does not interfere with its power to decide on political parties’ symbols.

Given the “peculiar issues” in the case, the Supreme Court asked all parties to frame the points they wish to argue. Meanwhile, it orally directed the Election Commission to not take any action on this subject.

The Supreme Court had earlier said that it would probably give a decision on August 8 about the future course of action. However, the case was not taken up that day because of chief justice of India NV Ramana’s unavailability.

Then, the next day of hearing was supposed to be August 12, according to the Supreme Court website. However, even that date has now been shifted to August 22.