Explained: How Election Commission decided that Eknath Shinde faction is the real Shiv Sena

The Shiv Sena was founded by Balasaheb Thackeray in 1966. The ideology of the party has been Marathi and Hindutva centric. However in 2019, the party broke its alliance with the BJP

In a major blow to Uddhav Thackeray, the Election Commission of India (ECI) ruled that the Eknath Shinde faction of the Shiv Sena will get to keep the original symbol (bow and arrow).

The ECI maintained that the 2018 amendment to the Shiv Sena party's constitution is 'undemocratic' and since the details of the organisational structure was not mentioned by any of the factions, proving the test of majority in organisational party structure was inconclusive. The EC relied upon the test of majority in the legislature wing of the party, in which the Shinde faction had the numbers.

The Shinde faction had told the EC how the Uddhav Thackeray had illegally amended the constitution in 2018 to appoint himself as the president.

The EC also took into account the three tests as mentioned in the Sadiq Ali case. It includes the Test of Aims and Objects of the Party Constitution, Test of Party Constitution and Test of Majority. The Tests of Aims and Objects was found to be inapplicable in this case. The EC while using the Test of Party Constitution determined the present dispute and held it will be undemocratic and catalytic in spreading such practices across parties.

The EC while applying the Test of Party Constitution held that the amended Constitution of 2018 of the Shiv Sena is not on record of the commission,. The Constitution of 2018 has conferred widespread powers of making various organisational appointments on a single person. Therefore the undemocratic norms of the original Constitution of the Shiv Sena, which was not accepted by the commission in 1999, have been brought back in a surreptitious manner, further making the party akin to a fiefdom, the EC pointed out.

"While applying the Test of Party Constitution, the commission found that the party Constitution on which respondent (Uddhav Thackeray) was placing strong reliance is undemocratic. The amendments in the Constitution in 2018 had undone the act of introducing democratic norms in the party Constitution of 1999 and the functioning of Shiv Sena brought by Late Balasaheb Thackeray at the insistence of the commission," the Election Commission said.

The EC order also said that, "the amended Constitution of 2018 displaces the agreed Constitution of 1999, that too without a confirmation or scrutiny of the amendment process itself having been followed diligently."

The complete list of office-bearers of various bodies was not provided to the commission, whenever elections were held or appointment were made, the EC said.

Neither of the factions provided details of the actual existing strength of the organisational body. The list of office-bearers as communicated to the commission in 2018 does not reflect the details of the members of the Pratinidhi Sabha and hence the Test of Majority in the organisational wing could not yield determinable or satisfactory number, the EC said.

Hence the EC relied on the Test of Majority in the legislative wing, which shows qualitative superiority in the majority test of the legislature party to the Shinde faction. The Shinde faction has the support of 40 of the 55 MLAs and 13 of the 18 Shiv Sena MPs.

About Shiv Sena

The Shiv Sena was founded by Bal Thackeray in 1966 with the aim of protecting the rights and interests of the Marathi-speaking population.

The ideology of the Shiv Sena is centred around Marathi rights and Hindutva.

The party broke its alliance with the BJP in 2019 and joined hands with the NCP and Congress. This move was seen as a significant shift from the Shiv Sena's traditional right-wing stance.