Why in News?

• The Election Commission of India allotted the name ‘Shiv Sena’ and the party’s bow and arrow symbol to the Eknath Shinde faction.

Highlights:

• The Election Commission of India (ECI) recognized the Eknath Shinde faction as the original party founded by Balasaheb Thackeray and allotted them the name ‘Shiv Sena’ and the party’s bow and arrow symbol to it.
• The commission based its decision on a “test on majority”.
• ECI also ordered the Shinde faction to amend the 2018 Constitution in line with the Representation of the People Act, 1951 and the EC’s guidelines on the internal democracy of parties.
• The ECI remarked that it was “paradoxical” that the internal functioning of a party was scrutinised only in cases of dispute redressals. The Commission asked parties to follow ECI guidelines and periodically upload a copy of their constitutions and the list of the office-bearers on their websites.

Disputes over election symbols:

• Under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 Order, ECI can decide disputes among rival groups or sections of a recognised political party staking claim to its name and symbol.
• The decision of the Commission shall be binding on all such rival sections/groups.
• This applies to disputes between recognized national and state parties.
• For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.

How does the EC decide?

• The ECI primarily ascertains the support enjoyed by a claimant within a political party in its organisational wing and in its legislative wing.
• For the Organisational Wing, the Commission examines the party’s constitution and its list of office-bearers submitted when the party was united.
• ECI identifies the apex committee(s) in the organisation and finds out how many office-bearers, members or delegates support the rival claimants.
• For the Legislative Wing, the party goes by the number of MPs and MLAs in the rival camps.
• ECI may consider affidavits filed by these members to ascertain where they stand.

‘Test on Majority’:

• While passing its decision, ECI considered and analysed three tests mentioned in the Sadiq Ali V/s ECI case 1971, which includes the Test of Aims and Objects of the Party Constitution, Test of Party Constitution, and Test of Majority.
• Of these, ECI found the Test of Aims and Objects of the Party Constitution to be inapplicable.
• ECI also concluded that using the Test of Party Constitution for determining the present dispute case will be undemocratic and catalytic in spreading such practices across parties.
• While applying the Test of Party Constitution, the EC said the amended Constitution of 2018 of Shiv Sena is not on record of the commission.
• ECI observed that the party had been made into a fiefdom by the undemocratic norms of its original constitution.
• Its 2018 Constitution has conferred widespread powers of making various organisational appointments on a single person.
• ECI hence, relied upon the Test of Majority in the legislative wing, which shows qualitative superiority in the majority test of the legislative party to the Shinde faction which has the support of 40 out of 55 Sena MLAs and 13 out of 18 Sena MPs.

What happens when there is no certainty?

• Where the party is either vertically divided or it is not possible to say with certainty which group has a majority, the EC may freeze the party’s symbol and allow the groups to register themselves with new names or add prefixes or suffixes to the party’s existing names.

What happens when rival factions reunite in future?

• If reunited, the claimants may approach the EC again and seek to be recognised as a unified party. The EC is also empowered to recognise mergers of groups into one entity. It may restore the symbol and name of the original party.