Explained: Why did the ECI freeze the symbol of the Shiv Sena

New Delhi, Oct 10: On October 8 the Election Commission in an interim order froze the bow and arrow election symbol of the Shiv Sena. The order will be in place until the claim for the symbol made by the Uddhav Thackeray and Eknath Shinde factions is decided upon.

The operative portion of the order read, (a) "neither of the two groups led by Sh. Eknathrao Sambhaji Shinde (Petitioner) and other led by Sh. Uddhav Thackeray (Respondent) [shall] be permitted to use the name of the party 'Shivsena' simplicitor"; (b) "neither...group shall...be permitted to use the symbol 'Bow & Arrow', reserved for 'Shivsena'"; and (c) "both...groups shall be known by such names as they may choose".

The ECI said that this has been done to place both the rival groups on even keel and to protect their rights and interests, and going by the past precedence to cover the purpose of the current bye-elections and to continue till the final determination of the dispute in the matter.

For the purposes of the current bye-elections the two groups shall be allowed such different symbols as they may choose from the list of free symbols, the order also read.

In the wake of the by-election to the Andheri Assembly seat to be held on November 3, the Shinde faction had moved the ECI in an attempt to deny the Thackeray faction the use of the bow and arrow symbol during the elections.

Why is such an order passed:

When a major party splits, a battle ensues for its election symbol. The last time the ECI took a similar decision was in October 2021 when it froze the 'Bungalow' election symbol of the Lok Janshakti Party (LJP).

The intention was to ensure that neither of the two factions of the LJP led by Chirag Paswan and Pashupati Kumar Paras could use the symbol during the elections for the Kusheshwar and Tarpur seats in Bihar which were scheduled to be held on October 30 that year.

Prior to that the similar orders had been passed when the AIADMK and the Samajwadi Party (SP) had split.

Who gets the symbol:

According to Para 15 of the Symbols Order of 1968, which was cited by the ECI in the Shiv Sena cases, " when the Commission is satisfied... that there are rival sections or groups of a recognised political party each of whom claims to be that party the Commission may, after taking into account all the available facts and circumstances of the case and hearing (their) representatives... and other persons as desire to be heard decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups."

While this applies to disputes in recognised national and state parties, in the case of registered but unrecognised parties, the ECI usually advises the warring factions to resolve their differences internally. The ECI in such cases also advises such parties to approach the courts if the dispute is not resolved internally.

The cases before 1968:

Prior to the 1968 Symbols Order, the ECI issued notifications and executive orders under the Conduct of Election Rules 1961.

In 1964, a breakaway group of the CPI approached the ECI and urged it to recognise them as the CPI (Marxist). They also provided a list of MPs and MLAs of Andhra Pradesh, West Bengal and Kerala who supported them.

After it was found that the votes secured by the MPs and MLAs supporting the breakaway group added to more than 4 per cent in the three states, the ECI recognised the faction as the CPI (M).

The first case under the 1968 order:

In 1969 the Indian National Congress had split. Following the death of President Dr. Zakir Hussain on May 3 1969, tensions between Indira Gandhi and a rival group increased.

The Congress led by K Kamraj, S Nijalingappa, Atulya Ghosh and Neelam Sanjiva Reddy then known as the Syndicate nominated Reddy for the post of President. Indira who was the Prime Minister encouraged V V Giri to contest as an independent and called for a conscience vote in defiance of a whip issued by Nijalingappa who was president of the party.

Following Giri's win, Indira was expelled from the party and the Congress split into the old Congress (O) led by Nijalingappa and the new Congress (J) led by Indira Gandhi.

The old Congress retained the party symbol of a pair of bullocks carrying a yoke while the breakaway faction was given the symbol of a cow with its calf.

A test of majority:

The ECI in almost all cases decides on the basis of a clear majority of party delegates, office bearers, MPs and MLAs. In the case of the Shiv Sena a majority of the elected representatives have shifted to the Shinde faction.

When the ECI is unable to test the strength of the rival groups based on the support within the party organisation, it falls back on testing the majority only among the elected MPs and MLAs.

In 1987 the ECI was faced with a peculiar situation when the AIADMK split following the death of M G Ramachandran. The group led by MGR's wife, Janaki had the support of a majority of the MPs and MLAs, while the Jayalalithaa led faction had the support of a substantial majority in the party organisation. A rapprochement was however reached before the EC could make a decision on which faction retains the party symbol.

A change in 1997:

In the case of the Congress split the EC recognised both the factions as the Congress (O) had a substantial presence in some states and satisfied the criteria fixed for the recognition of the parties under Paras 6 and 7 of the Symbols order.

Things however changed in 1997 following the several splits in the Congress and Janata Dal. The EC did not recognise the new parties either as state of national parties. The EC felt that merely having MPs or MLAs is not enough as they had fought and won the elections on tickets of their parent or undivided parties.

A new rule was put in place by the ECI under which the splinter group of the party other than the group which got the party symbol had to register itself as a separate party and could lay a claim to the national or state party status. This however would be only on the basis of the performance in the national order state elections post the registration.