How will the Election Commission identify the ‘real’ Shiv Sena after the Supreme Court order?

New Delhi: A lengthy verification process by the Election Commission (EC), which could take several months, will determine which of the two factions of the party bears the name and symbol of the Shiv Sena.

According to legal experts, the key to both sides is physical evidence on the number of supporters they enjoy in both the organizational side and the legislative wing. SK Mendiratta, former legal advisor to the Election Commission, said, “All material evidence will be examined in an impartial manner. In addition to the organization and strength in the legislative wing, political activities can also be considered. ,

The central election watchdog, which had so far waited for the Supreme Court’s ruling in the case of the “real Shiv Sena”, has now officially moved on from the top court. A constitution bench headed by Justice DY Chandrachud and comprising Justices MR Shah, Krishna Murari, Hema Kohli and PS Narasimha refused to stay the proceedings of the Election Commission and rejected Uddhav Thackeray’s argument that the body should be replaced by Shiv Sena. One should wait for the top court to decide on the disqualification of the MLAs. ,

The Election Symbols (Reservation and Allotment) Order, 1968 seeks to determine who gets the party’s symbol, flag and name.

Section 15 of the Act states, “When the Commission is satisfied with the information in its possession that a recognized political party has a rival class or group, each of which claims to be that party, the Commission shall make all available having regard to the facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as may be heard, decide that one such rival class or group or one of such rival classes or groups is not a recognized political party and the decision of the Commission shall be binding on all such rival classes or groups.”

According to office bearers aware of the process, the EC’s first step would be to make separate calls to both the parties, through their lawyers, to produce whatever documents they have to support their claims.

“The EC will focus on how many members of both the factions are in the organization and the legislative wing. It also includes the number of members in both the Legislative Assembly and Parliament. Both the parties will have to submit these materials in the form of affidavits,” said a senior official.

Abhishek Singhvi, counsel for the Uddhav Thackeray-led faction, said. “All efforts will be made with the support of material. We hope to prove that both the organization and the electoral wing belong to the Sena led by Uddhav. This will be a verification exercise based on the material. ,

To be sure, the faction led by current Maharashtra Chief Minister Eknath Shinde has more MLAs.

According to former Chief Election Commissioner SY Qureshi, the Election Commission decides the matter on the basis of “rule of majority”. He said the election body examines which faction has a majority in the legislative and organizational departments.

In case of legislative majority, the Election Commission will take into account which faction has the support of more MLAs (MLAs) and MPs (MPs). The former CEC said that as far as the organizational majority is concerned, all office-bearers of the party and those eligible for appointment of the president of the political party are taken into account.

The party must submit a signed affidavit declaring its support. “The Election Commission goes through a rigorous process of comparing signatures in case they are forged, i.e. if an eligible member has signed for both the parties,” Qureshi said. “Once this happens, the Election Commission decides which party gets the election symbol.”

Qureshi said that after the split of the Congress in 1969, the Supreme Court had upheld this principle. The Supreme Court upheld the said argument in the year 1971. “The majority principle has stood the test of judicial scrutiny,” Qureshi said.

If there is no certainty that the party is either vertically divided or it is not possible to say which group has the majority, the Election Commission may freeze the party’s emblem and allow the groups to register themselves with new names. or may allow the addition of party prefixes or suffixes. current name. “But this rarely happens; The Election Commission usually rules in favor of one or the other side,” the former CEC said.

The fight over the symbol has been bitter in the past, with the Election Commission being flooded with reactions from every faction of the party.

After the split of the Samajwadi Party in Uttar Pradesh in 2017, both the factions approached the commission for the iconic bicycle emblem.

The Election Commission looked at the numbers and found that the Akhilesh Yadav faction has the support of 205 out of 228 party MLAs. The Chief Minister also had the support of 56 out of 68 members of the Legislative Council and 15 out of 24 MPs.