The cases of the political party splitting from the major faction have been rampant for a few years. Either we trace the crisis in Maharashtra between the Eknath Shinde and the Uddhav Thackeray faction or the crisis in U.P. about the allotment of the CYCLE symbol between the 'Chacha' and 'Bhateeja' aka Shiv Pal and Akhilesh Yadav, be it the conflict for the symbol of the clock or the brawl in the AIDMK for the symbol of two leaves.

All such cases involving adjudication of splits in the political party and the further allotment of the symbol by recognizing the majority faction within that political party are the work of the Election Commission of India. The commission has a plethora of powers under Article 324[1] via which it is the body responsible for the dispute arising out of any anomaly in the election procedure or intraparty disputes concerning the split. However, there exists an anti-defection law in India.

The members of the parliament or the legislative assembly who exhibit a split from the majority faction are expelled from the parliament, and the speaker of the concerned assembly adjudicates the removal of the defected members, this creates a fundamental constitutional problem about the resolution of the symbol dispute by the Election Commission of India and the decision of the speaker about the members being defected from the parliament. The blog will aim to provide a solution for the problem of allotment of symbols to the defected members of the parliament before the decision of the speaker of the parliament that might make the purpose and proceedings before the ECI futile.

The Purposive Interpretation of the 10th Schedule: The Anti-Defection Laws
In addressing the issue of party splits and symbol allocation, Paragraph 15 of the Symbols Order, 1968, states that when there are rival factions within a recognized political party, each claiming to be the legitimate party, the Election Commission of India (ECI) must examine all facts and circumstances, hear the representatives of each faction, and then determine which, if any, is the recognized party. This decision is binding on all parties involved.

The Sadiq Ali Case and the Test of Majority Support

To determine the legitimate faction, the Supreme Court, in the Sadiq Ali case, established tests based on the majority support within the party, the party's constitution, and its aims and objectives.[2] Among these, the test of the majority is most frequently applied by the ECI, as numerical strength is crucial in a democratic setup.

The Complex Situation: ECI and Speaker's Decisions
The determination of which faction has majority support in the legislature depends on whether its members are disqualified under the anti-defection law, whose adjudication is done by the speaker of the house. This creates a complex situation where:

The Election Commission of India (ECI) may decide on the allocation of the party symbol before the speaker's decision on determining the majority in the house. The ECI might allocate the symbol to the faction of the party that has defected in the house. This could potentially make the entire proceedings before the ECI meaningless.

Now, the way to solve this anomaly is for the Speaker to decide on disqualification before the ECI makes its decision, which could then reflect a different majority and it would become easier and feasible for the ECI to render its decision on the party symbol (which it would allocate to the majority faction) without having a conflicting decision which will be constitutionally desirable and sound.

If a faction that currently holds a legislative majority is later disqualified, its claim to the party symbol becomes invalid. Even if not disqualified, the uncertainty surrounding their status makes it impractical for the ECI to decide on symbol allocation. Therefore, proceedings under Paragraph 15 of the Symbols Order[3] should not commence while disqualification petitions are pending, as the legislative majority status is subject to change based on the Speaker's adjudication.

By laying down a constitutional sequence where disqualification issues are resolved first, the Supreme Court can prevent conflicts between the ECI's and Speaker's decisions. This approach ensures that factions undergoing disqualification cannot claim the party symbol, as their claim would lack merit and might be rendered void if disqualified.

Ensuring Stability and Constitutionality

The harmonious construction of Paragraph 15 of the Symbols Order with Paragraph 2(1)(a) of the Tenth Schedule implies that factions incurring disqualification cannot stake a claim to be the recognized party. Consequently, the ECI should defer to the Speaker's decision on disqualification before making its judgment on symbol allocation.

Harmonious Construction of the Symbols Order and the Tenth Schedule
While concerns about potential delays in the Speaker's decision are valid, these can be addressed by setting a strict timeframe for adjudication. This ensures that the ECI's functioning is not unduly stalled, balancing timely decision-making with constitutional propriety. Thus, a clearly defined constitutional sequence will uphold the integrity of the democratic process and prevent conflicts between constitutional authorities, fostering a fair and coherent political system.

Addressing Concerns About Delays

To prevent complications arising from the Tenth schedule and paragraph 15 of the Symbols order, the apex court should establish a Constitutional procedure where disqualification is addressed as a priority. The claim for the symbol of the members undergoing disqualification would lack merit, as even if granted, they might face disqualification, rendering their assertion as the political party void.

Harmonious construction of Paragraph 15 of the Symbols Order with Paragraph 2(1)(a) of the Tenth Schedule would necessarily imply that a splinter group or rival faction of a political party, which has voluntarily given up membership of the political party and thereby incurred disqualification in terms of para 2(1)(a), cannot be permitted to stake a claim to be that political party.

Hence, the Commission should be precluded from making a judgment, as the issue involves disqualification, over which it lacks authority and is obligated to adhere to the Speaker's decision. Legislators facing disqualification under Para 2(1)(a) of the Tenth Schedule lack the standing to assert a claim under Paragraph 15 of the Symbols Order, asserting their status as a political party from which they are Constitutionally considered to have relinquished membership.

The question that can posed at this point might be regarding the hefty time that the speaker might take to adjudicate the proceedings, as stipulated upon by Hon'ble CJI DY Chandrachud[4], one constitutional authority cannot be stalled from functioning just because of qua timet action i.e the fear of the members being disqualified at a later date, however brushing aside the said contention it can also be said there is no permanent halt to the function of the constitutional body, and even if there is, it is of temporary nature which is necessary to avoid constitutionally undesirable outcome i.e. the conflict between the decisions of the 2 constitutional bodies. The apex court is however free to restrict the time period for the speaker to adjudicate upon the disqualification proceedings.[5]

Conclusion
In light of the intricate interplay between the anti-defection law and the symbols order, it is necessary for the Supreme Court to lay down a clear constitutional sequence for resolving disputes concerning the allocation of party symbols. The current practice, where the Election Commission of India (ECI) may decide on party symbols while disqualification petitions are pending before the Speaker, risks creating a constitutionally undesirable outcome. Such outcomes could potentially undermine the foundation of democratic processes by allowing factions that might later be disqualified to temporarily claim the party symbol.

The proposed sequence would prioritize the adjudication of disqualification petitions by the Speaker before the ECI addresses the symbol allocation. This ensures that the ECI's decisions are based on a stable and constitutionally sound foundation, reflecting the true majority within the legislative body. Furthermore, this approach harmonizes Paragraph 15 of the Symbols Order with Paragraph 2(1)(a) of the Tenth Schedule,[6] preventing splinter groups that have voluntarily given up their membership from claiming the status of the original political party.

Although concerns about delays in the Speaker's adjudication process are valid, these can be mitigated by setting a reasonable timeframe within which the Speaker must decide on disqualification petitions. This balance between timely decision-making and constitutional propriety ensures that the functions of both the ECI and the Speaker are respected and that their decisions do not conflict.

Therefore, establishing a constitutional sequence for these disputes will uphold the integrity of the democratic process, ensuring that symbol allocation reflects the legitimate and stable majority within the legislative assembly. It will also prevent any constitutional conflicts between the decisions of the ECI and the Speaker, fostering a more coherent and fair political system.

End Notes:

1. The Constitution of India, Art. 324
2. Sadiq Ali and Anr. v Election Commission of India and Ors., (1972) 4 SCC 664.
3. The Election Symbols (Reservation and Allotment) 1968, paragraph 15.
4. Subhash Desai v Governor of Maharashtra, 2022 SCC OnLine SC 1062.
5. Kihoto Hollohan v Zachillhu, AIR 1993 SC 412.
6. The Constitution of India, Tenth Schedule, paragraph 2(1)(a)

Written By: Abhinav Patel - Dr.Ram Manohar Lohia National Law University