The Eknath Shinde faction was given the Shiv Sena office at Parliament House on 21 February 2023, after the Election Commission recognized them as the legitimate Shiv Sena.

At the same time, the Supreme Court agreed to hear the appeal of the Uddhav Thackeray faction to the Election Commission’s decision on February 22, 2023.

But, a crucial element of the ongoing Sena vs. Sena is undoubtedly the process by which the electoral commission (EC) determined which party is the true Sena.

The test of the majority

In making its decision, the EC simply applied the majority test, determining which faction has the most MPs and MLAs on its side to claim the name Shiv Sena and the “bow and arrow” symbol. Eknath Shinde, the chief minister of Maharashtra, led the winning faction. In its ruling, the EC cited the Sadiq Ali case, which occurred after Indira Gandhi split the Party in 1969. The EC finally decided that Congress (O) v.

Congressional Dispute (J) using the “majority test”, a provision introduced in the Symbols Order of 1968. The case, which became known as the Sadiq Ali case, was heard by the Supreme Court, which in 1971 upheld the EC ruling.

Why were other tests rejected?

Other requirements include “party constitution tests” and “purposes and objects tests” among others. Similar to the Congressional split case of about 50 years ago, the EC dismissed the other two in Sena v. Sign. Both parties affirmed their adherence to the goals and objectives. The EC concluded that it could not rely on this test.

The Shiv Sena’s constitution was amended in 2018 to give party chairman Uddhav Thackeray the authority to appoint and remove officials. However, the EC stated in its order that the party had not submitted the document related to the amendment, in violation of the Representation of the People Act of 1951.

Second, if the “incorporation test” test were applied, the EC would need to know how many of all office holders supported each faction. But he would most likely be in trouble, as the entire electoral college within the party would be made up of Thackeray appointees. This clause of the Shiv Sena constitution was deemed “undemocratic” by the EC.

Experts are divided by order of the EC

On the Commission’s order, constitutional scholars have differing views. India’s former Chief Election Commissioner Om Prakash Rawat stated that the Commission always takes into account all relevant criteria, including the party’s aims and objectives, the support of party officials and the majority in the legislative wing.

But, only proof that is free of disagreement or challenge is considered, Rawat said in a statement. “A test is thrown out if there is any disagreement about it. Most of the time, counting the MLAs and the MPs is enough to reach a decision.”

Rawat further emphasized that the Commission’s decision only affects which side receives the emblem and name and has no influence on other factors such as ownership. PMP Achary, former Lok Sabha Secretary General, maintains that the Commission’s order is flawed.

According to Achary, “the party is the organization and can exist even without a legislative wing.” “Therefore, organizational strength must be considered.”

According to Achary, the Commission cannot make decisions based solely on who controls the legislative branch; Otherwise, the one with the largest number of legislators will always prevail.

Achary stated that it was unreasonable and unacceptable to base decisions solely on the legislative wing.