Shiv Sena Case | Election Commission's Decision Lacks Logic, Encourages Defection : PDT Achary

The Election Commission of India's decision to recognise Eknath Shinde's group as the official Shiv Sena lacks logic, opined PDT Achary, former Secretary General of Lok Sabha.

"When we analyse the Election Commission's decision, we feel that there is a lack of logic in it. Also there is a non-adherence to the criteria laid down by the Supreme Court in Sadiq Ali case", Achary said in an interview with Manu Sebastian, Managing Editor of LiveLaw.

He criticised the Election Commission's approach of approving Shinde's claim only on the basis of the legislative majority, without considering the organisational strength. He also expressed surprise at the ECI commenting about the lack of internal democracy in the party and refusing to accept the party constitution. By foraying into these issues, the ECI has exceeded its mandate under the Election Symbols (Reservation and Allotment)Order, 1968. ECI's logic of refusing to reckon the organisational strength on the ground that the party lacks internal democracy is unheard of, he said.

Edited excerpts from the interview :

Allowing the ECI to decide the issue during the pendency of disqualification proceedings was a "little odd".

Achary questioned the rationale of allowing the Election Commission of India to decide Shinde's claim when proceedings against anti-defection law were pending against him and his followers.

The Supreme Court allowed the ECI to decide the matter, despite the pendency of disqualification proceedings, which according to him "was a little odd". He agreed that there is some logic in the ECI stand that it can decide the issue, as the 10th schedule proceedings will affect only the membership of the legislature and not of the party. However, both the issues are closely interlinked, especially considering the fact that the ECI's decision was ultimately based on which faction had majority in the legislature.

"The 10 the schedule is a part of the Constitution, so anti-defection law is a constitutional law, whereas the decision by the Election Commission under Paragraph 15 of the Election Symbols order is a decision under a subordinate legislation. So between these two, naturally the Constitution should have got precedence, because that is the Constitutional law and then that should have been decided urgently, because it concerned the survival of the government and the entire political activities which are happening in the assembly.  So according to me, the Constitutional law has precedence. So that should have been decided in point of time as first issue", he said.

Election Commission has departed from criteria laid down in Supreme Court's decision, its findings of inner party democracy unheard of

Achary pointed out that one of the criteria laid down in the Sadiq Ali case was the test of majority, which involves the majority in both the legislature and organisational wings of the party. In the case of split in the Congress party during the times of Indira Gandhi, both the legislative strength and the organisational strength were taken into account.  However, in the present case, the ECI has considered only the legislative majority.

"Here, the Election Commission has departed from that for no reason. The reason that has been given is not very acceptable, it's not very logical. They say that there was no democracy in that party and since there is no internal democracy in that party and therefore we cannot give any credence to the number which they have put up. Well, this is a very curious argument which I have never heard from the election commission", he said.

ECI exceeded its mandate by making findings on party democracy

He explained that a party, while seeking registration under Section 29 of the Representation of People Act , has to give an affidavit that they subscribe to the ideals of democracy, secularism and socialism. After that, whenever they hold the elections, they have to intimate the Election Commission about the change in the office barriers. 

"Election Commission cannot decide the democratic character of a particular political party. I don't think the Symbol Order gives this power to the Election Commission. Election Commission has a tendency to invoke Article 324 whenever they use such powers. Article 324 does not give them all the powers on Earth to decide any issue. In Mohinder Singh's case, Justice Krishna Iyer had very clearly said, yes you can certainly use powers which are which are not there in the statute law if certain powers are required to conduct free and fair elections. But if there is a statute law dealing with that issue, then you have to go by the statute. So Election Commission needs to go by the Symbols Order. They cannot invoke Article 324 and decide that they have all the powers to decide any matter in any way. That is not how it is. They also are bound by the statute. Therefore, it is not correct to say that the election commission can decide for itself and for others the structure of political parties. Each political party has its own background and its own structure. All that is required is that they have to declare before the Election Commission that they subscribe to democracy, secularism and socialism and so on. How many parties hold elections regularly? The election commission has forayed into other areas to decide that the top man is not a democrat and he has not been elected democratically and so on. Which party in India has held Democratic elections periodically? I mean the election commission was never concerned about those things"

Is ECI saying it will withdraw recognition of parties if they don't hold elections?

"To say that there is no internal democracy in a party constitution and the top man has not been elected democratically and so on... that I think is an area where the Election Commission cannot step in. When a party gives an undertaking before the Election Commission that they believe in democracy, the Election Commission's job ends there so far as registration is concerned. Which party in India does hold periodic elections as the election commission wants them to do? If they are not doing it, then the election commission should in fact tell all the political parties to do it immediately otherwise we will withdraw your recognition. Is that the position which the EC is taking? So that is not a credible basis to decide this issue that's my point"

"Then what happened to Sadiq Ali? What happened to the organisational majority? Election Commission cannot take a position that since there is no election in or since it thinks the was elected undemocratically... I mean that kind of a value judgment cannot be made by the election commission. Statute doesn't allow it to do that and therefore  this decision is based on a very questionable assumption"

Curious precedent which can encourage defection

Achary opined that the ECI has laid down a "curious precedent", as it means that a breakaway faction can claim official status, even if they are liable to disqualification under the tenth schedule.

"If you carry this logic forward then that the election commission is heading in that direction only", he said replying affirmatively to the interviewer's question if the decision will amount to giving a premium to those who are defecting.

In this context, he reminded that the tenth schedule does not recognize "split" as a defence. So, it does not matter whether the breakaway faction is in the majority or minority. Even if the entire legislature wing moves out, they are liable to disqualification, if their acts violate the tenth schedule. To decide the original party head for the purposes of tenth schedule, the relevant fact is who put up these candidates as MLAs during the election.

"So it is actually the original Shiva Sena led by Uddhav Thackeray which put up these candidates as MLAs in the election. When you decide the anti-defection law cases, then you have to go back to the period when these members were put up by the original Shiva Sena. That is the position so far as anti-defection law is concerned", he said. So, if they have voted against a whip of the original party, they are liable to disqualification. 

ECI's decision cannot impact disqualification proceedings

While acknowledging that the incumbent Speaker can't be realistically expected to decide the disqualification petitions against the Shinde group, Achary said that theoretically, the disqualification proceedings will not be affected by the ECI's decision. Because, the ECI's recognition will apply only prospectively from this moment. For deciding disqualification under tenth schedule, the material factor to be taken into account is who was party chief who fielded these candidates as MLAs during elections.

For the same reason, Achary opined that the ECI decision will not impact the ongoing cases in the Supreme Court.

 "It shouldn't have any impact as explained. The proceedings under election the defection law that is introduced have to be conducted by the Speaker in accordance with the law. The law recognises only the original political party. No speaker can decide that the original political party is the one led by Mr. Shinde because at that point of time he was only a member of the party". 

"So the ECI's recognition will operate only from now on and it will not relate back.  it doesn't have any retrospective effect. That cannot be because that will create absurd results"

ECI failed to discharge its duty

He said that the ECI should have gone deep into the issue to see who has a greater support in the party. 

He explained that the Representation of Peoples Act recognizes only the political party. Legislative party is not a legal entity as such, it is only recognized only under the Parliamentary procedure. In the Representation of People Act, there is no mention about legislative party. 

"Necessarily you have to go to the organisational wing of the party and see how many office barriers at different levels of this party structure owe allegiance to that particular leader. That you have to go into.  You cannot escape that and decide it merely on the basis of the number of MLAs and MPs. If you do that, then that will create very very unwholesome situation in the country. That is not the way in which this matter should be decided. There should be a more elaborate exercise  taking evidence from the ground level. It is the duty of the election commission to go deeper into these  and see who has a greater support in the party. That is the job of the election commission. when they decide this otherwise".

To a question whether the ECI adopted a "short-cut" by only looking at the legislative majority, he replied :

"Yes absolutely. That is what it appears to be. That is what it appears to be and therefore they have built a logic around it. They have quoted many decisions, some out of context. When we look at it, when we analyse the election commission's decision, we feel that there is a lack of logic in it. Also there is a non-adherence to the criteria laid down by the Supreme Court in Sadiq Ali case".

Interview can be watched here :