ECI frowns on Shiv Sena’s amended party constitution of 2018, terms powers vested in Shiv Sena Paksha Pramukh as authoritarian, party had failed to intimate the poll body about the amendment.
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Mumbai: Whatever the controversy it has created, or misinterpretations it has caused like in the parable of the blind men and the elephant, the 77 page final order of February 17, of the Election Commission of India (ECI) in the Shiv Sena Dispute Case is a landmark one.
In short, the order is a grim warning to all the political parties across the political and ideological spectrum to get their house in order in respect of internal party democracy while adhering to the Constitutional provisions.
The two ECI Commissioners and the Chief Election Commissioner, Rajiv Kumar in their judicial interpretation and after scrutiny of the law decided to recognize the faction led by Chief Minister Eknath Shinde to be recognised as the Shiv Sena and awarded the “Bow and Arrow” symbol to it.
The ECI based its final order on the interpretation of Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968, Section 29A of the Representation of the People Act, 1951.
Here in this case, it must be borne in mind that Chief Minister Eknath Shinde was the Petitioner and Uddhav Thackeray being the Respondent in this Dispute Case.
As per the Factual Matrix in the ECI final order, Shivsena has been a recognised State Party with the “Bow and Arrow” symbol, and the party was registered with the ECI on October 12, 1989 under the provisions of Section 29A of the Representation of the People Act, 1951.
The ECI notes that the Constitution of the Party as available on the record of the Commission is as amended in the year 1999. “During the course of this dispute case, it was brought to the Commission’s knowledge that the aforesaid Constitution of Shivsena was amended in the year 2018. However, this amended Constitution was never brought on record of the Commission as required under Section 29A of the Representation of the People Act, 1951”, observes the ECI in its final order of February 17.
Enlisting the developments in the Dispute Case, the ECI notes that Anil Desai had by email on July 2, 2022 had communicated to the Commission the organisational structure on June 25, 2022. “The same was reiterated in the letter of July 4, 2022 further mentioning that the Respondent is the Shivsena Paksha Pramukh. However, the said communication was not accompanied by supporting documents in prescribed format…”, notes the ECI final order.
The ECI in its final order further notes, “That the Commission is required to apply the “Test of Majority” in the legislative and organisational wings of the party to determine the present dispute and that the said test has been reaffirmed by the Hon’ble Supreme Court in the matter of Sadiq Ali vs. Election Commission of India [(1972) 4 SCC 664] and consistently applied by the Commission in a plethora of political party disputes.”
In the steps envisaged under Para 15 proceedings, which states “both the parties to the dispute to submit their respective documentary evidence of support claimed by them in the organisational and legislative wings of the party. They may also submit the list of members of various Committees formed in the internal party elections held.”
Thereafter, both the Petitioner and the Respondent each in their own way had submitted affidavits of support of Lok Sabha MPs and Members of Maharashtra Legislative Assembly before the ECI.
The Sadiq Ali case of 1972 and Para 15 of the Symbols Order lay down three criteria for adjudication of such disputes, which include – Test of Majority, Test of Aims and Objects and Test of Party Constitution.
In respect to the Test of Aims and Objects and Test of Party Constitution, the ECI in its final order notes that with both the sides claiming adherence to the same, the application of this test will render an inconclusive answer.
On the issue of Test of Party Constitution, the ECI in its order notes “the original Constitution of the Shivsena was amended in the year 1999 after the Commission had written to Late Balasaheb Thackeray, the then President of the Shivsena, to amend the Constitution to make it more democratic. However, the changes introduced by the Late Balasaheb Thackeray were reversed by the Respondent in the year 2018 by making amendments in the party Constitution which gave the power of appointment of most of the party office-bearers to the Party President.”
The ECI in its order further notes, “The Party Constitution, as amended in 2018, will yield non-democratic and biased outcomes, as its design was changed to curb inner party democracy and to stifle dissent. Further, it was contended that the said amendment of 2018 was in the teeth of the prevailing instructions of ECI. Therefore, reliance on such a party Constitution was untenable for deciding the present dispute.”
“Further, the 2018 amendment of the Party Constitution has made the position of “ShivSena PakshaPramukh” a power centre and as per Article XI of the said Constitution… In view of the aforesaid powers entrusted upon ShivSena PakshaPramukh, by the 2018 amendment of the Party Constitution, there cannot be any other inference but that the Party President has been vested with authoritarian powers.”
The ECI later on further observes that the amendments in the Constitution in 2018 had undone the act of introducing democratic norms in the Party Constitution of 1999… The amended Constitution of 2018 displaces the agreed Constitution of 1999, that too without a confirmation or scrutiny of the amendment process itself having been followed diligently… The Constitution of 2018, confers widespread powers of making various organisational appointments on a single person. Thus, the undemocratic norms of the original Constitution of Shivsena, which was not accepted by the Commission in 1999 have been brought back in a surreptitious manner further making the party akin to a fiefdom.”
“To put in nutshell, the party Constitution envisages the President nominating the Electoral College that is to elect him. This goes against the spirit of democracy and negates the very purpose for which the entire exercise was carried out”, remarks the ECI further in its final order.
After having tried the two Tests of – Test of Aims and Objects and Test of Party Constitution, the ECI considered the Test of Majority, and the Legislative Wing to determine the dispute case.
In doing so the ECI noted that out of the 55 Shivsena MLAs, Eknath Shinde had affidavits in support of 40 MLAs, while Uddhav Thackeray had affidavits in support of 15 MLAs. In respect of MLCs, Shinde had none, while Thackeray had support of all the 12 MLCs.
Out of the 19 Lok Sabha MPs, the Shinde faction had affidavits of support of 13 MPs, while Thackeray faction had affidavits in support of 4 (claimed 6). Whereas, in respect of Rajya Sabha MPs all the 3 MPs pledged their support to the Uddhav Thackeray faction.
Going by the numbers game in the legislature, the ECI observes, “Thus, the Petitioner (Eknath Shinde) enjoys a clear support in the legislative wing of the Party. The outcome of the majority test in the legislative wing clearly reflects qualitative superiority of the majority test in favour of the Petitioner.”
In its concluding remarks based on its scrutiny, the ECI notes that – “No serious contestation on facts by either side of numerical outcome of legislative wing test has emerged; There is ‘democratic deficit’ in the amended Constitution, the process of its amendments and its working; That respective claims of numerical majority in organisational wing by both factions is not satisfactory; That combined reading of the respective numerical counts in the present case, more reliability emerges in the legislative wing; That within the number count, overwhelming numerical superiority of Petitioner in legislative wing is categorically verifiable. The numerical count included all MPs, MLAs and MLCs.”
In the end the ECI very scathingly observes, “The paradox of India being the world’s largest democracy and its political field being occupied by some Parties which are being treated as fiefdoms is disconcerting. For a truly functioning democracy, it is important that one of the key stakeholders i.e., the political parties are run in a democratic manner and this in turn can be ensured only if the Constitution being adopted by them does not allow concentration of power in the hands of a few.”
The Supreme Court of India while hearing the plea of former chief minister Uddhav Thackeray refused to grant a stay on the ECI final order and posted the matter for further hearing after two weeks-time.
The ECI too taking note of the on-going February 27, Assembly by-polls for Kasba Peth and Chinchwad constituencies has allowed the Shiv Sena (Uddhav Balasaheb Thackeray) and its symbol of “Flaming Torch” to be retained as per its interim order of October 10, 2022 till the completion of the said bye-elections which as per the ECI poll schedule is March 4.
