Date: 05/10/2022

Relevance: GS-2: Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.

Key Phrases: disqualification of MLAs, 10th Schedule, Election Symbols (Reservation and Allotment) Order, 1968.

Context:

• A five-judge Constitution bench of the Supreme Court allowed the Election Commission of India to decide on Maharashtra CM’s petition staking claim over the “real” Shiv Sena and the party symbol of bow and arrow.

Background

• This decision was a reversal of its earlier order restraining the poll body from adjudicating on the matter on a plea by Uddhav Thackeray.
• The lawyers of the Thackeray camp had argued against the EC’s involvement by citing that disputes around the disqualification of MLAs and the validity of Shinde’s takeover are pending in the court.
• The Shinde faction responded by saying that proceedings under the 10th Schedule had nothing to do with the current dispute before the ECI.

Approach of the Commission in such matters

• It is important to note that the EC does not jump into such cases by taking suo motu cognizance, and comes into the picture only when a party approaches it with its claim.
• The Commission then starts proceedings under Section 15 of the Election Symbols (Reservation and Allotment) Order, 1968 which are quasi-judicial in nature.
• It goes by the “Rule of Majority and Numerical Strength”, starting with a notice to the other faction to give its version.
• Both parties are asked to produce evidence in support of their claim, accompanied by affidavits.
• The EC examines the claims and counterclaims of the two factions to determine which one has the majority.
• This includes MPs, MLAs, and MLCs on the one hand, and the office-bearers of the party, on the other.
• Both factions often question and contest the supporters’ list of the other faction as inflated, containing many bogus signatures.
• Determining the genuineness of signatures is time-consuming and often a frustrating job.
• Since lawyers are involved, the whole process can normally take four to five months.

Court Cases related to Symbols Order

• In the very first judicial test of the Symbols Order, a three-judge Supreme Court Bench of Justices H R Khanna, K S Hegde and A N Grover clarified the purpose of Paragraph 15 in these words:
  • The symbol is not a property to be divided between co-owners.
  • The allotment of a symbol to the candidates set up by a political party is a legal right.
  • And in case of a split, the Commission has been authorized to determine which of the rival groups or sections the party is entitled to the symbol.
  • The Commission, in resolving this dispute, does not decide as to which group represents the party, but which group is that party.
• The court upheld the constitutionality of the “test of majority” in the Congress split case (Sadiq Ali v. Election Commission of India, 1971).
• This principle has been repeatedly upheld by several subsequent judgments.

Not a new phenomenon

• A split in a political party is not a new phenomenon. There have been several cases in the past, with both factions seeking recognition as the real party.
• The most important case which became the benchmark is that of the Indian National Congress, which split in 1969 leading to the formation of two parties — Congress (O) and Congress (I).
• Subsequently, Congress split a second time in 1978 when Congress (Indira) and Congress (Urs) were created.
• In the 1980s, in Tamil Nadu, AIADMK split into two factions, one led by MGR’s wife Janaki and the other by J Jayalalithaa.
• Later, the Janata Dal went through a similar process, becoming JD (U) and JD (S).
• In 2012, we had a similar situation in Uttarakhand where the Uttarakhand Kranti Dal split and, in UP in 2017, where the Samajwadi Party split just before the elections.

Stand of Commission in above cases

• In all these cases, the EC went through the above-mentioned process. The EC looks at the strength of each group, in the party’s organization and in the legislatures, applying the test of majority.
• The Supreme Court has, time and again, upheld the test of majority in the Symbols Order to be a “valuable and relevant test” to decide a dispute between rival groups within a “democratic organization” like a recognized political party.

What happens if the elections are scheduled before the Commission’s decision?

• In such situations, the name of the party and the symbol both are frozen and the two factions are given a temporary name like Party A and Party B, and symbol A and symbol B.
• When EC finally decides in favor of a faction, the other faction is allowed to register itself as a new party with a new symbol.
• As for the current scenario, it remains to be seen how the case proceeds and what political and constitutional resolution it will lead us toward.
• Till then, an ad hoc arrangement for giving distinguishable names to the two factions and ad hoc symbols to each seems to be the likely scenario.

Source: Indian Express

Mains Question:

Q. Past decisions on splits in political parties could guide the Election Commission in adjudicating on the claims of the two factions of a party. Discuss in light of Commission’s decisions in the past. [250 Words].