'Test of majority' allows Akhilesh Yadav to ride away with Samajwadi Party's bicycle symbol

The Election Commission of India on Monday ruled that the group led by Uttar Pradesh Chief Minister Akhilesh Yadav was the one that truly represented the Samajwadi Party, and it could use the party’s bicycle symbol in the upcoming Assembly elections in the state in February and March.

The “test of majority” tilted the scales in favour of Akhilesh Yadav, and ensured that his father, Mulayam Singh Yadav, lost control of the political organisation that he founded in 1992.

Unlike Mulayam Singh Yadav’s side, the Akhilesh Yadav group, which includes his uncle Ram Gopal Yadav, was able to prove with extensive documents and sworn affidavits of party members that the majority of the Samajwadi Party was on its side. Guided by past judgments of the Supreme Court, the Election Commission decided to award Akhilesh Yadav official control of the party.

While Akhilesh Yadav’s side was represented by former Union Telecom Minister and senior lawyer Kapil Sibal, arguments on behalf of Mulayam Singh Yadav was made by former solicitor general Mohan Parasaran.

The dispute

The dispute began on December 30, 2016, when Mulayam Singh Yadav expelled Akhilesh Yadav and general secretary Ram Gopal Yadav from the Samajwadi Party. The order was rescinded the next day.

However, in a hurriedly-convened national convention on January 1, Mulayam Singh Yadav was dethroned from the post of party president, with the convention declaring Akhilesh Yadav as the party’s new leader instead.

Mulayam Singh Yadav disputed this appointment before the Election Commission, arguing that the national convention was held in violation of the party constitution as he, by virtue of being the party president, was not consulted before holding the convention.

On January 13, the Yadav patriarch told the media in Lucknow that there was no split in the party, and all troubles were the result of a conspiracy hatched by Ram Gopal Yadav.

After the national convention, both the groups went to the Election Commission, which issued notices to them on January 7.

Two questions

In essence, the Election Commission had to answer just two questions:

• Whether the developments in the Samajwadi Party since December 30, 2016 showed the presence of two rival groups and a “split” in the organisation?
• Who really represented the Samajwadi Party? 

The Akhilesh Yadav side contended that Mulayam Singh Yadav had violated party norms by not holding the national convention for over two years since October 2014.

In response to the notice issued by the Election Commission, Ram Gopal Yadav presented the election body with sworn affidavits from Samajwadi Party members who supported Akhilesh Yadav’s elevation as president. This included 205 of the party’s 228 members of the legislative Assembly, 56 of 69 members of legislative Council, 15 of 24 members of Parliament, 28 of 46 national executive members and 4,400 of 5,731 national convention delegates, or close to 90% of all Samajwadi Party delegates.

Arguments before EC

Parasaran argued that the Election Commission could decide on the fate of the party symbol only when the existence of a split was proved beyond doubt. In this case, he argued, Mulayam Singh Yadav was still in the party. He added that the national convention was held in violation of the party constitution and the consent of Mulayam Singh Yadav, the party president, was never sought. There was no formal notice for the convention nor was there an agenda circulated in advance. Ram Gopal Yadav, it was argued, was expelled from the party in December, and had no right to call for a convention. Nowhere in the affidavits filed by the rival group was it claimed that there was a split in the party.

Secondly, Parasaran argued that the “test of majority” as envisaged by the Supreme Court in 1972 did not apply to cases after 1989, when a special provision for registration of political parties under Section 29A was included in the Representation of Peoples Act. He said that before 1989, parties were registered under the Symbols (Reservation and Allotment) Order, 1968. But after the Act was amended, any decision on a split should be decided not on the basis of majority but on the “functionality of the rival groups on the touchstone of party constitution”.

In other words, Parasaran argued, since the convention was illegal itself, the decision to elect Akhilesh Yadav as party president was unconstitutional.

Test of majority supreme

But the Election Commission dismissed these arguments.

First, the commission said that the enactment of Section 29A had no bearing on the Supreme Court’s 1972 order in the Sadiq Ali case in which the apex court upheld the constitutionality of the test of majority.

Further, the commission also pointed to similarities between the dispute in the Samajwadi Party, the 1969 split in the Indian National Congress and the 1996 split in the Telugu Desam Party to justify the use of the “test of majority”.

Second, it said that it was clear from developments since December 30 that the party had two rival groups. In this regard, the commission also pointed to the submissions made by Samajwadi Party leader Amar Singh on January 3, where the presence of a “splinter group” was clearly mentioned.

The commission accepted the argument made on behalf of Akhilesh Yadav that in a democratic institution, the view of the majority cannot be pushed aside and “tyranny of minority” allowed to hold sway.

Further, despite notices from the commission, the Mulayam Singh Yadav side did not provide any strong documents to prove it had majority support in the party.

Therefore, going by the sworn affidavits filed by the majority of delegates in support of Akhilesh Yadav, the commission said the group were the real representatives of the party and would use the bicycle symbol in the upcoming elections.