The poll panel recognised the Eknath Shinde-faction as the real Shiv Sena.
Two former chief election commissioners have supported the Election Commission's order on the Shiv Sena symbol dispute, saying it applied the time-tested principles to arrive at the decision but a constitution expert feels the verdict is "flawed" as the test of ascertaining the strength of the organisational wing of the Uddhav Thackeray group was not used.
The poll panel had on Friday recognised the Eknath Shinde-faction as the real Shiv Sena and ordered allotment of the bow and arrow election symbol of the undivided party founded by the late Balasaheb Thackeray to it.
Sushil Chandra, who was the CEC between April 2021 and May 2022, said in such matters (intra-party disputes relating to poll symbol), the poll panel has always followed the Sadiq Ali Supreme Court case.
He also observed that the top court has held that the EC is the sole authority in deciding such matters.
Chandra pointed out that the SC also did not issue any interim stay in the case as demanded by the Uddhav Thackeray group.
In a jolt to the Thackeray camp, the Supreme Court on Wednesday refused to stay the Election Commission order recognising the Shinde-led bloc as the real Shiv Sena and allotting the party's original 'bow and arrow' poll symbol to it.
The SC bench, while refusing to grant the interim relief of status quo on properties and bank accounts, said though it was entertaining the plea of Thackeray it cannot "stay an order at this stage as they have succeeded before the EC." The top court had on Tuesday agreed to hear the plea of the Thackeray camp against the Election Commission's decision.
S Y Qureshi, who was the CEC between July 2010 and June 2012, said the EC order was on "expected lines".
He said the number of MPs and MLAs (the legislative wing of the party) have been the deciding factor "always".
He recalled that the apex court in its judgement in 1971 had said that intra-party fueds are not property disputes where a family is contesting it and the property is divided. "It is winner takes all ...if one faction is the party (or the real party in common parlance), there is no question on the division of the party." He said the EC took seven-eight months to decide the case. Had it waited for a few more days to allow the SC settle the dispute over disqualification of MLAs, "it would have been better." He said the EC deciding on the strength of the legislators is fine, but taking it further by mentioning the number of voters they represented is an argument "unnecessarily stretched".
He said it was "illogical" as voters did not switch sides, but the MLAs did.
"The ultimate test of voters' loyalty is the election," he asserted.
In its order, the Commission said the MLAs backing Shinde got nearly 76 per cent of votes polled in favour of the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly elections.
The MLAs in the Uddhav Thackeray camp got 23.5 per cent of the votes polled in favour of the winning Shiv Sena candidates, the three-member Commission said.
But constitution expert and former Lok Sabha secretary general P D T Achari held a contrary view and felt that the EC order was "flawed" as it overlooked the strength of the organisational wing of the party supporting Thackeray.
The test adopted by the EC was to look into the strength of the organisational as well as legislative wings of the party in deciding such cases. The principle was upheld by the Supreme Court in the Sadiq Ali case, he said.
"In this particular case, the EC has taken only the legislative wing as the basis of reaching the conclusion that Shinde faction is the party," he pointed out.
Achari said according to him and as per the criteria laid down and upheld by the apex court, the EC order is not "very sound".
He noted that the poll panel has given a reason for not looking at the organisation. The EC, according to him, said the party constitution's functioning was not very democratic and all powers were concentrated in the hands of the "top man" (Thackeray).
He said the EC "cannot go beyond their remit and EC cannot decide what party structure should be adopted and followed by political parties. They have the freedom to structure their party as they like ...," he said.
He said it is "not the constitutional function of the EC to find out whether the president has more powers or the general secretary has more powers ... and take a position on that ...That is the flaw in this judgment. It is incomplete and the test which the EC has applied is confined to the strength of the legislative wing of the party ...the test is not complete ... this decision is flawed."
In its order, the poll watchdog gave a detailed reasoning on why it was forced to ignore the claims of the rival factions led by Shinde and Thackeray respectively over the organisational wing of the party, contending that the amendments to the Shiv Sena constitution in 2018, after the death of founder Balasaheb Thackeray, were undemocratic and paved the way to appoint people from a coterie as office bearers without any election at all.
The Commission noted that party constitutions are often amended to allow for its self-destruction by obliterating internal democratic mechanisms.
It said by the time the dispute reaches the Commission, party Constitutions are often seen to have been mutilated to undemocratically appoint people from a coterie as office bearers without any election at all.
Such party structures fail to inspire the confidence of the Commission, forcing it to ignore the numerical strength of opposing factions in the organisational wing altogether despite being conscious of its importance and role as the building block of the party.
The Commission said it applied the principles of 'Test of Party Constitution' and the 'Test of Majority' while finalising the order.
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