When a political party splits down the middle, who gets the original name and symbol? The Supreme Court of India raised critical questions on how the Election Commission of India (ECI) decides such disputes, especially when tests used to find the real party appear weak or inconclusive.
A three-judge bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana was hearing the plea filed by Uddhav Thackeray. The petition challenges the ECI’s decision that recognised the faction led by Eknath Shinde as the real Shiv Sena and awarded it the official ‘bow and arrow’ election symbol.
The Four Options Before the Election Commission
During the hearing, Justice Joymalya Bagchi pointed out that an authority deciding a party split under election rules typically has four choices:
- Examine the party constitution and internal organisational structure.
- Apply an organisational-majority test (support among party office-bearers and cadre).
- Apply a legislative-majority test (support among elected MLAs and MPs).
- Exercise a residual option: decline to award the reserved symbol to either faction and freeze or cancel it.
The bench questioned why the ECI only looked at three options and picked the legislative majority test without even considering the fourth option of withholding the symbol from both sides.
“If none of these tests appear to be strong, then what else? Why give a prize to one? Cancel it,” Justice Bagchi observed during the proceedings.
What The Law Says: Paragraph 15 and the Tenth Schedule
Disputes over party names and symbols fall under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968. This rule gives the Election Commission the power to decide which faction represents a recognised political party when rival groups claim ownership.
Historically, the Supreme Court’s 1971 ruling in Sadiq Ali v. Election Commission of India allowed the poll body to examine numbers inside the legislature. However, as Justice Bagchi noted, that ruling came before the introduction of the Tenth Schedule of the Constitution of India in 1985, which deals with disqualification on grounds of defection.
The bench referred to the Constitution Bench ruling in Subhash Desai v. Principal Secretary, Governor of Maharashtra. That judgment highlighted the fragility of relying purely on elected lawmakers to decide the fate of a political party. Lawmakers might switch sides, but that does not automatically reflect the will of the wider political party organisation.
Why Withholding a Symbol Is the ‘Rarest of Rare’ Move
Justice Bagchi acknowledged that refusing to give a symbol to either faction is a drastic measure. He described it as a residual, exceptional course akin to a “rarest of rare” situation in sentencing, because freezing a symbol essentially pronounces an institutional “death sentence” on that party’s identity.
Even so, the court emphasised the principles of judicial review. Under judicial review, a court does not replace the expert body’s opinion with its own. Instead, it checks whether the decision-making process was fair and whether all relevant legal options were evaluated.
The bench pointed out that if an authority had four paths available on paper and completely ignored the fourth without explaining why, that omission itself becomes a ground for court scrutiny. If the ECI had stated that it could not freeze the symbol due to historical sentiments attached to the Shiv Sena, the court might have accepted that reasoning.
The Arguments from the Shinde Faction
Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, defended the Election Commission’s order. He argued that Paragraph 15 does not prescribe any single rigid test. Because the organisational structure and party constitution were disputed and inconclusive, the Commission had to rely on legislative strength.
Kaul argued that earlier Constitution Bench observations did not ban the legislative majority test entirely. He submitted that the Commission had weighed the facts and provided reasons for its choice.
What Happens Next?
The Supreme Court made it clear that it is examining the legal standards governing splits in political parties across India. The outcome of this case could set clear rules on when the Election Commission can rely on elected legislators versus when a party symbol must be frozen to protect inner-party democracy.
The matter remains under active hearing before the Supreme Court bench.
Story reported by Supreme Court – High Court – Legal Breaking News | Live Law India. This article is BareLaw’s independent explanation and analysis.
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