'Mockery Of Voter' : Supreme Court Questions ECI Using 'Legislative Majority' Test Under Symbols Order, Says It Can Encourage Defections

While hearing the case related to the rift in the Nationalist Congress Party (NCP), the Supreme Court on Tuesday (March 19) questioned the rationale of the Election Commission of India (ECI) giving official recognition to the Ajit Pawar faction solely based on the test of "legislative majority".

The Court expressed a concern that this approach could encourage defections.

A bench comprising Justices Surya Kant and KV Viswanathan was hearing the Special Leave Petition filed by the Sharad Pawar group challenging the February 6 decision of the ECI.

During the hearing, the bench underscored that when the Election Symbols(Reservation and Allotment) Order was enacted in 1968, the 10th Schedule was not in place. Even that Sadiq Ali judgment (1972), which laid down the parameters for deciding the real party in cases of split, was delivered before the enactment of the 10th schedule. It was only after the 52nd Constitutional Amendment of 1985 that the 'Anti-defection' law or the 10th Schedule was inserted in the Constitution. Though the tenth schedule initially recognized both 'split within a party' and 'merger with another party' as valid grounds of defence, later, the defence of 'split' was omitted from the 10th schedule. Justice Viswanathan pondered whether by applying the 'legislative majority' test, the ECI validates a defection by way of a 'split' which no longer exists as a defence under the 10th Schedule. The bench concerned itself with whether doing so would mock the conscience of the voters of the country.

"In that scenario, when the Order (of Election Commission) is not based on organisational strength,based only on legislative strength, is it not recognizing a split, which is no longer approved under the tenth schedule....do not go by the legislative test then, go by the organisational test. And if you cannot, then what is the solution? It is a real worry because, otherwise you can engineer defections and then come and get the recognition of the party symbol. It is a mockery of the voter", Justice Viswanathan said.

In this connection, it may be noted that recently, the bench led by Chief Justice of India DY Chandrachud also expressed concerns about the use of "legislative majority" as a test to determine which faction is a real party. On March 7, while hearing a petition filed by Shiv Sena (Uddhav Balasaheb Thackeray) against the Maharashtra Speaker's refusal to disqualify the MLAs of Eknath Shinde group under the tenth schedule, CJI orally observed that the Speaker's reliance on the test of legislative majority was contrary to the Supreme Court's judgment in Subhash Desai(2023).

It may be recalled that the Supreme Court in Subhash Desai (Shiv Sena dispute) held that the 'legislative majority' was not an appropriate test to determine the real party when two rival factions have emerged after a split.

Notably, during today's hearing, Senior Advocate Abhishek Manu Singhvi, appearing for Sharad Pawar, placed reliance on the Subhash Desai judgment to question the ECI's decision.

The ECI's decision was based on the criterion of 'legislative majority', with the Ajit Pawar faction possessing 51 out of 81 legislators. While other assessments such as the 'aim and objectives' and the 'organisational majority' tests did not yield definitive outcomes, the commission relied on the legislative majority test to determine the faction's legitimacy. 

At the end of today's hearing, the Court passed an interim order directing that the Sharad Pawar group will be entitled to use the name 'Nationalist Congress Party – Sharad Chandra Pawar' and 'man blowing turrah (trumpet)' symbol for Lok Sabha and State Assembly elections. It was further ordered that the Ajit Pawar faction should make a public declaration that the use of the 'clock' symbol for the ensuing Lok Sabha and the Maharashtra Assembly Elections is sub-judice and subject to the outcome of the challenge made by the Sharad Pawar group to the decision of the Election Commission of India (ECI) recognizing Ajit Pawar faction as the real Nationalist Congress Party (NCP).

Case Details - Sharad Pawar v. Ajit Anantrao Pawar & Anr. | Special Leave Petition (Civil) No. 4248 of 2024