ECI Freezing Symbol

In the month of June 2022 Shiv Sena, a registered political party in Maharashtra split into two factions, and this led to the fall of the MVA government led by Udhav Thackrey of Shiv Sena (supported by NCP and Congress). As with the split in the party, the other faction led by Eknath Shinde had more than two third  MLAs of Shiv Sena, and they withdrew their support to the government led by Udhav Thackrey. After the fall out both factions claimed the party’s name and for the symbol allotted to the Shiv Sena, which is a symbol of the Bow and Arrow.

After the split, Eknath Shinde formed the government with the support of the BJP and became Chief Minister (CM), and claimed that his faction is the original Shiv Sena by virtue of having the support of more than two third MLAs of the party. In the meantime, the Thackrey-led faction approached the Election Commission of India (ECI) and urged the EC to hear them out before making a decision on the Shinde-led faction’s claim on the party’s name and symbol.

In the first week of October 2022, the ECI gave the interim order that name of the party and its symbol stands frozen, and both the factions were told to give three choices for name and symbols ( from the list of free symbols). In the end, Udhav Thackrey-led faction was allotted the name of Shiv Sena (Udhav Balasaheb Thackrey) with the symbol of Mashal (Torch), and Eknath Shinde-led faction was allotted the name of Balasaheb Thackreychi Shiv Sena, that is Shiv Sena (Balasaheb Thackrey) with the symbol of crossed two swords with a shield. This is a temporary measure till the EC decides on who is the real Shiv Sena based on the documents/evidence submitted by each faction.

Let us look how the ECI settles a dispute if a party split itself into two factions:

Governing law for the disputed symbol when the party splits- When the commission is satisfied on information in its possession that there are rival groups of recognised political parties each of whom claims to be that party, the ECI may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the groups, and other persons as desire to be heard, decide that one such rival section or group of none of such rival groups is that recognised political party, and the decision of ECI shall be binding on all such rival groups.

Before taking a call on which faction makes up the official party, the ECI looks at the support enjoyed by each claimant in the party’s organizational and legislative wings. More specifically, the ECI examines the party’s Constitution and the list of office bearers that were submitted when the party was united. In terms of support enjoyed by the claimants in the party’s organisational wing, the ECI identifies the party’s apex organizational committee(s) and determines the number of office bearers, delegates, and members who support the rival claimants. For support within the party’s legislative wing, the ECI looks at the number of MPs and MLAs supporting rival claimants.

What ruling does the ECI deliver?

Now if the ECI determines that a faction clearly commands the support of the majority of members in the party’s organizational and legislative wings, it may settle the dispute by giving the faction with the most support the right to the party’s symbol. The losing faction meanwhile may be asked to form a separate political party.

In case the ECI finds that there exists no clear majority support for either faction, it may freeze the party’s symbol and allow the two factions to register themselves with new party names or add prefixes and suffixes to the existing party name to make clear distinctions about the new entities that are formed.

In the present case of two factions of Shiv Sena, The ECI may find it difficult to decide which faction enjoys the majority support within the party. As it looks now Eknath Shinde factions have majority support in a legislative wing of the party, whereas the Udhav Thackrey faction may have majority support in the organisation. If this happens that none of the factions will get the original party name and symbol. In my opinion, this is going to be the case, and ECI may give their decision on this line.

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Anil Malik

Mumbai, India

13^th October 2022