The split in Shiv Sena has resulted in a situation of Sena Vs. Sena. The Eknath Shinde faction won the recent trust vote with the support of 164 MLA's out which 39 MLA's were from the Shiv Sena. The Udhav Thackeray led faction has only 16 MLAs supporting him. Not only is the Eknath Shinde faction saved from the Anti-Defection law but has also challenged the authority of the other faction to term itself as the real Shiv Sena.

The question that now arises whether the majority faction of the Shiv Sena led by Eknath Shinde is the real Shiv Sena or the Udhav Thackeray led faction. The factor that shall distinguish both the factions of Shiv Sena from the other is the Election Symbol allotted by the Election Commission under the provisions of the Election Symbols (Reservation & Allotment) Order, 1968. The next battle after winning the trust vote shall be to stake claim on the Shiv Sena party and its symbol of bow and arrow.

In a parliamentary democracy like India, election symbols play a crucial role and have become an important identifying factor for different political parties. Under the provisions of the law, the Election Commission has been given the constitutional mandate to adjudicate disputes between two rival factions.

Under Paragraph 15 of the Election Symbols (Reservation & Allotment) Order, 1968, the Commission has the power to recognize a splinter group or rival section of a recognized party which claims to be the party. The Commission is to decide after taking into account all the available facts and circumstances of the case and after hearing the representatives of the sections or groups and other persons as desired to be heard. Therefore, it is the Election Commission has the authority to decide that one such rival group or splinter group or none of such rival groups or sections is that recognized political party.

The Supreme Court of India in Sadiq Ali Vs. Election Commission of India[1] had adjudicated upon the split in the Indian National Congress and held in favour of one faction basis the majority support enjoyed by it both in organizations and legislative wings of the party. The Court observed that according to Paragraph 6 of the Election Symbols (Reservation & Allotment) Order, 1968, one of the factors which may be taken into account in treating a political party as a recognised political party is the number of seats secured by that party in the House of People or the State Legislative Assembly or the number of votes polled by the contesting candidates set up by such party.

If the number of seats secured by a political party or the number of votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understand as to how the number of seats in the Parliament and State Legislatures held by the supporters of a group of the political party can be considered to be relevant. The Court held that the test of majority and numerical strength was not only germane and relevant but a very valuable test.

The High Court of Delhi in V.K Sasikala Vs. Election Commission of India & Anr.[2] had a decided a writ petition challenging the order passed by the Election Commission regarding the Election Symbol of the party AIADMK. Vide the order of the Election Commission, one group of the party was entitled to the use of the reserved symbol of "Two Leaves" for the state of Tamil Nadu and Union Territory of Puducherry.

The High Court of Delhi upheld the majority test utilised by the Commission to determine which group has the right to the party symbol. The Court stated that "we hold that the majority test applied by the Commission was germane and relevant. The test of adherence to the party constitution and the aims and objectives test were not relevant; and even otherwise, neutral."

The Hon'ble High Court of Delhi had also interpreted the Sadiq Ali judgment and observed that the other tests mentioned such as "aims and objects as incorporated in the Constitution of the Congress" and "test based upon the provisions of the Constitution" were only recorded as a having been applied by the Election Commission but were not approved by the Supreme Court. The High Court of Delhi observed that the test other than the majority test will be ineffectual and neutral.

In the dispute arising between the Eknath Shinde group and Udhav Thackeray group, the aims and objectives test will not be of much relevance as the Eknath Shinde has repeated publicly his allegiance to the political ideology of the founder of Shiv Sena. There is no statement made by him which would contradict the political stand or ideology of the Shiv Sena.

The law interpretated by the Supreme Court of India in various judgments passed by it makes it amply clear that the for the allotment of the party symbol, the real test shall be the majority test. However, the majority test shall not only include the Members of Legislative Assembly but also Members of Parliaments and members of various local bodies and also organisational members of the party. Therefore, whichever faction of Shiv Sena manages to show majority not only from the legislative wing of the party but also organisational wing of the party shall be entitled to the bow and arrow symbol of the Shiv Sena.

End-Notes:

1. 1972 AIR 187
2. W.P (C) 10725/2017