Test Of Legislative Majority Futile To Decide Who Is 'Real' Shiv Sena; ECI's Recognition Will Apply Prospectively : Supreme Court

A remark made by the Supreme Court in the Shiv Sena case (Subhash Desai vs Principal Secretary to Maharashtra Governor) might have an impact on the decision of the Election Commission of India to recognize the Eknath Shinde-led group as the "real" Shiv Sena.

The judgment authored by Chief Justice of India DY Chandrachud made an interesting observation in paragraph 150 that the test of legislative majority will be futile in assessing which faction is the real Shiv Sena. The observation was made while discussing the issue whether the Election Commission of India should defer its decision as to which group is entitled to the official party symbol as per the Election Symbols (Reservation and Allotment)Order till the Speaker decides the disqualification proceedings.

During the course of the discussion, the bench, after referring to the tests which are adopted by the Election Commission to decide rival claims under the Symbols Order, observed :

"In arriving at this decision, it is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order. The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test"

In this context, it is relevant to note that the Election Commission's decision to recognise Shinde group as the official Shiv Sena was substantially based on a single aspect - the legislative majority of Shinde group.

In its order passed on February 17, the ECI said that it applied three tests in the case- aims & objects of the Party Constitution, Party Constitution and Majority. The first two tests remained inconclusive. As regards the test of majority, the ECI said that it could not reach a conclusive finding regarding majority in the organisational wing of the party for both the groups. Therefore, legislative majority test was the only concrete criteria. So, the decision favouring Shinde group was solely based on the number of MPs, MLAs, MLCs it had in the Parliament and State Assembly. Considering this fact, the Supreme Court's observation regarding the futility of legislative majority test in this case is quite impactful.

It may be noted that the decision of the ECI has been challenged by the Uddhav group in a separate writ petition filed in the Supreme Court, which is pending. The Constitution Bench clarified in its judgement that it has not expressed any opinion on the merits of that matter.

Complications in the present case due to parallel proceedings before Speaker and ECI

This remark of the Court should be seen in the backdrop of the fact that it acknowledged the complications which arise in the present case because of the Shinde group, the claimants before the Election Commission, facing disqualification proceedings before the Speaker over alleged defection.

"When the Tenth Schedule and the Symbols Order are invoked concurrently, complications may arise, including in cases such as the present one. If the ECI applies the ‘test of majority,’ it will be required to consider (among other things) which of the two factions enjoys a majority in the Maharashtra State Legislature. Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the ECI. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification", the Court said. It noted that the outcome of the dispute before the ECI may change depending on the outcome of the disqualification petitions and vice-versa too.  In view of this complications, the petitioners (Uddhav Thackeray group) urged the Supreme Court to stay the ECI decision while the disqualification proceedings are pending.

Even while seeing some merit in the petitioners' concerns, the Court held that it cannot order a stay on the ECI proceedings, as the Symbols Order and the 10th Schedule operate in different spheres.

"The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority", the Court said. It further held that the decision of the ECI under the Symbols Order need not be consistent with the decision of the Speaker under the Tenth Schedule. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes.

ECI's decision will have prospective effect

Another significant observation made in the judgment is that the Election Commission's recognition will only apply prospectively; meaning that it will not impact the previously initiated disqualification proceedings.

"The decision of the ECI has prospective effect. A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision. In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law(s) for the allotment of a fresh symbol to their group".