In the Sena vs Sena fight the next battle would be in the Election Commission

New Delhi, July 01: Round one of the Shiv Sena battle is done and Eknath Shinde has taken over as the Chief Minister of Maharashtra.

In the assembly the rebel faction led by Shiv Sena would claim that it is the real Shiv Sena as it has the numbers. Looking at the numbers, the Speaker may not have any objection in declaring the Shinde group as the real Shiv Sena in the Maharashtra legislative assembly.

Both the Shinde and Uddhav Thackeray factions have called themselves as the real Shiv Sena. While this round of the battle may also be won by the Shinde faction, the next fight would be in the Election Commission.

Once the Speaker takes a decision, the next move would be to go to the Election Commission and claim the party symbol. While the Election Commission would go by the Symbol Order, it would also have to take into account the opinion of others such as the office bearers, state legislators and Members of Parliament. Just having a large number of MLAs on one's side would not be enough t claim the symbol.

In 1985 the Constitution was amended to institutionalise the concept of disqualification on the ground of defection. With this the Tenth Schedule was added to the Constittion and this is commonly referred to as the anti-defection law. It said that members elected as MLAs or MPs of one particular party or voted or abstained from voting in the House would be disqualified.

According to the law a split takes place when one-third members of a party form a group on their own.

A merger takes places when two-thirds of the members supported the move for a merger with another political party. In 2003 the 91st amendment to the Constitution was and the provision of recognising a split was done away with. Due to this mergers are the only exception against the rule of defection
Until 2003 if two-third members left a party they could form a separate group and not attract the anti-defection law. This would mean that Shinde despite having two-third members have to merge with another party.

In this context one would also have to look at Paragraph 4(1) of the Tenth Schedule. It says a member of a House who was elected to it as part of a political party cannot be disqualified if their original political party merges with another party. For this to be valid, two-thirds of the members of the legislature party have to agree to the merger.

The Eknath Shinde faction in order to avoid disqualification will either have to prove before the Speaker and Election Commission that he has the numbers to be the original Shiv Sena. His next option would be to merge with another political party.

In the year 2016 12 of the 15 MLAs joined the ruling party and the Speaker recognised the defection as a merger as more than two-thirds had moved.

In 2015 when 10 of the 15 Congress MLAs joined the BJP the Goa Bench of the Bombay High Court held that they would not attract the anti-defection law as they formed two-thirds of the strength. The ruling is still under challenge in the Supreme Court.

Now coming to the Symbols Order one must look at paragraph 15 which empowers the Election Commission to recognise a splinter group as the original party after hearing both sides. It says that the EC shall take into account all the available facts and circumstances of the case and hearing such representatives of both sections or groups before declaring one of the factions as the recognised political party.

This right of the EC was affirmed in the Sadiq Ali vs Election Commission case of 1972. It held that the test of majority and numerical strength is a very valuable and relevant test. Whatever might be the position in another system of government or organisation, numbers have a relevance and importance in a democratic system of government or political set up and it is neither possible nor permissible to lose sight of them. Indeed, it is the view of the majority which in the final analysis proves decisive in a democratic set up," the Supreme Court had said.

In 2017 when the EC was deciding a dispute on the Samajwadi Party leadership said that in any democratic institution, which the political parties are, the will of the majority shall prevail in the internal functioning of the party and if the majority will be suppressed or not allowed to have a proper expression, it will amount to tyranny of the minority.

The Delhi High Court which decided on the Two Leaves symbol of the AIADMK approved the majority test that was applied by the EC under Paragraph 15 of the Symbols Order.

These decisions would come in handy for the Eknath Shinde faction to avoid disqualification. The faction could also secure an interim order on getting the party's symbol frozen to avoid disqualification until the EC passes its final order.