Can the Real Shiv Sena Please Stand Up? How EC May Decide Eknath-Uddhav Tussle

Former election commissioners explain what factors have to be considered to decide which faction is the real party.

Uddhav Thackeray & Eknath Shinde

(Photo: Modified by The Quint)

The Maharashtra political crisis triggered by Eknath Shinde's rebellion in the Shiv Sena has now moved to the next phase, with Chief Minister Uddhav Thackeray seeking the disqualification of several rebel MLAs.

Shinde, formerly the head of the Shiv Sena's legislature party, has been removed from his post, but he argues that his faction is the true Shiv Sena, upholding the legacy of Balasaheb Thackeray, who founded the party.

The rebel leader also claims to have the support of 40 Shiv Sena MLAs, just over 2/3 of the legislature party (there are 55 Shiv Sena MLAs in the Maharashtra Assembly). This arithmetic could prove crucial when it comes to the application of the anti-defection law, as the rebels can argue that they fit within the exception for mergers under the law.

The argument that Shinde's faction is the true Shiv Sena is a crucial one, as this could be used to argue that Uddhav Thackeray and co have no power to seek disqualification of the rebels, or issue whips to them regarding how to vote in any floor test/vote of no confidence.

But how is one supposed to decide which faction is the true party? Is this a decision for the Speaker of the House or the courts or someone else? And what are the factors that have to be kept in mind when making such a decision?

A Matter for the Election Commission

When it comes to official recognition of political parties, the deciding authority is the Election Commission of India.

Their power to decide which faction of a party is the true representative of the party is enshrined in Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968.

According to this provision,

When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.

A former Chief Election Commissioner explains that when such a dispute is brought before the EC, it has to issue notice to the other side, get both parties to submit evidence to show they are the true representatives of the party, and then obtain any responses to the evidence as required.

The process is not a short one, and can be very complicated. When examining the claims of each faction, the EC will have to look at the support for each of them – not just from its MLAs, MLCs or MPs, but also from those part of the organisation including office bearers and delegates.

If it is not possible to get clear details on the numbers of supporters in the organisation as a whole, then it will have to look at the number of legislators supporting each faction.

This is of course where the Shiv Sena crisis is likely to get interesting, as Eknath Shinde currently claims to have the support of a majority of MLAs, but it remains to be seen how much support he has in the rest of the party for his breakaway.

A senior advocate who has fought nearly all recent matters regarding political parties and formation of state governments in the high courts and the Supreme Court of India says that practically speaking, it will all come down to who can show the most support among the 'legislature party', ie the party's MLAs in the Maharashtra Legislative Assembly.

If Uddhav Thackeray can in some way show he has the support of the remaining MLAs and the party's cadres, then he might still be able to make a case to the EC, but it will be a difficult task if Shinde really can prove the support of 40 MLAs.

So What Happens Now?

While the EC has the power to make this determination, it is still not clear when the matter is set to reach them.

For Uddhav Thackeray's faction, it makes far more sense to not approach the EC, and instead seek disqualification of the rebels by approaching the Speaker. As the Speaker's post is currently vacant in the Maharashtra Assembly, the requests for disqualification will be considered by the Deputy Speaker, Narhari Zirwal.

Although the Speaker's post is supposed to be an entirely neutral one, the officials are selected from political parties and their decisions are generally along party lines. Zirwal is a member of the NCP, an alliance partner of Uddhav Thackeray in the Maha Vikas Aghadi government, and so is likely to rule in a manner which favours the sitting government.

Former Chief Election Commissioner Navin Chawla is of the opinion that the matter will not end up at the EC's door, with the Speaker/Deputy Speaker instead having to deal with this question, which will eventually have to be decided on the floor of the House.

Depending on what the Deputy Speaker decides to do, the Bombay High Court and Supreme Court are likely to be pulled into the matter, as is the Governor of Maharashtra, Bhagat Singh Koshyari.

The Governor could throw his weight behind the Shinde faction, and if the turmoil gets too much, push for President's Rule in the state.

The rebels whose disqualification has been sought by the Uddhav Thackeray faction have already approached the Bombay High Court for relief. The high court is likely to say that it can look into the issue once the Deputy Speaker has made a decision, and may ask them to make a decision on the disqualification pleas within a stipulated period of time.

The Supreme Court has had to deal with some cases involving disqualification of MLAs in recent years following the fiascos in Karnataka and Madhya Pradesh.

While the court has tended to avoid second guessing the Speaker's discretion to assess whether the conduct of an MLA amounts to 'voluntary resignation' from their party (which is grounds to disqualify them as MLAs), it did hold in the Karnataka case that resignation from the House cannot itself be considered resignation from their party.

The problem, of course, is that the rebels claim to be the true party, and therefore are challenging any decisions made by Uddhav Thackeray's faction.

The options for the high court or even the Supreme Court in deciding this question are limited to ordering a floor test in the Maharashtra Assembly to see who has the support of the party's MLAs. However, when such a test is held, there will then be the issue of whips to MLAs directing them to vote in a particular way – but only the 'real' party can issue such whips.

This brings us back to the EC's role once again, and it will be interesting to see if the high court/Supreme Court decide to take the matter to them. In the meanwhile, the infighting and counter-claims are only likely to continue, unless some sort of rapprochement is possible, as was the case when the AIADMK faced a split after the death of MGR in 1989.