Dispute between Udhv Thakrey and Eknath Shinde both claiming to be real Shivsena:

Shivsena is a recognized State Party in the State of Maharashtra with the symbol “Bow & Arrow as its reserved symbol and the Party was registered with the Election Commission of India on 12. 10. 1989 under the provision of Section 29A of the Representation of the People Act, 1951. The Constitution of the Party as available on record of the Commission is as amended in the year 1999. During the course of this dispute case, it was brought to the Commission’s knowledge that the aforesaid Constitution of Shivsena was amended in the year 2018. However, this amended Constitution was never brought on record of the Commission as required under Section 29A of the Representation of the People Act, 1951, hereinafter called RPA, 1951. Further, as per the details available with the Commission of the last organisational elections of the Party, as communicated vide letter dated 27.02.2018, Sh. Uddhav Thackeray [hereinafter, “Respondent”] was elected as the ‘Shivsena Paksha Pramukh, for a term of five years along with other office-bearers. Sh. Eknath Shinde [hereinafter, “Petitioner”] was appointed as a ‘Shivsena Leader, during the aforesaid organisational election.

The Chief Election Commissioner, noted in the order passed by the Commission in Janata Dal Dispute as under:

In almost all the cases of disputes in political parties with which I had the occasion to deal, allegations have been made that the disputes had arisen or splits occasioned due to the arbitrary or capricious acts of certain office bearers who were not allowing the will of the mojority to prevail. But in all such cases what the Commission was confronted with was some office bearers occupying or sticking to their offices by the manipulative tactics of postponing or not holding altogether the organisational elections in the party and with some adhoc committees or bodies constituted of some handful of nominated me7nbers chosen at the whim and fancy of the leaders at the top. The Test of Majority, in such adhoc nominated bodies also becomes redundant. Firstly, such adhoc nominated bodies having been formed by the party bosses themselves will naturally consist of the favoured persons who will rarely go against the wishes of those to whom they owe their very existence in those bodies. In the next place, such nominated persons cannot be truly termed the representatives of the primary members who had no say or hand in their appointments and consequently the decisions taken by such adhoc nominated bodies, even if by majority, cannot be regarded as the decisions reflecting the wishes and aspirations of the majority of primary members. Confronted with such situation the Commission finds itself in a helpless situation to grant relief to those who approach it seeking protection against the tyranny of the privileged few who have been treating the political parties headed by the as their fiefdom.

49. […]. While there is an obligation on the part of all registered political parties to abide by their party Constitution, it is even more so on the part of the recognised parties to scrupulously observe the same, particularly in the matter of their democratic functioning. Apart from the said obligation under their party Constitution, the concept of noblesse oblige, casts a sacred duty upon such recognised parties, which are placed at a higher pedestal even by the law in certain respects, to ensure their functioning on healthy democratic norm to which they bind themselves through the covenant of a written Constitution at the time of seeking registration under section 29A of the Representation of the People Act, 1951..

Order dated 16.10.1994 passed in Dispute Case No. l of 1994, In Re.. Janta Dal

Total votes in favour of Eknath Shinde:

That in the State Legislature of Maharashtra, the Petitioner has the support of 40 out of 67 Members (55 MLAS and 12 MLCS) whereas the Respondent has the support of 23 out of 67 Members (claimed 27/67). With respect to the Members of Parliament, the Petitioner has the support of 13 out of 22 Members (19 Lok Sabha MPS and 3 Rajya Sabha MPs) whereas the Respondent has the support of 7 out of 22 Members (claimed 9/22). Thus, the Petitioner enjoys a clear support in the legislative wing of the Party. The outcome of the majority test in legislative wing clearly reflects qualitative superiority of the majority test in favour of the Petitioner.

The 40 MLAs, supporting Petitioner, garnered 36,57327 votes out of total of 47,82440 votes i.e 76 % of votes polled in favor of 55 wining MLAS in the general election to the LA, 2019. This contrasts with 11,25113 v.otes garnered by 15 MLAS whose support is claimed by the Respondents i.e 23.5% of votes polled in favor of winning 55 MLAS. Further, as against 90,49,789, total votes polled by Shiv Sena in General election to the Legislative Assembly of Maharashtra in 2019 (including the loosing candidates), votes polled by 40 MLAS supporting the petitioner come to 40 % whereas votes polled by 15 MLAS supporting the Respondents come to 12 % of total votes polled by Candidates contesting on symbol of the party in 2019 general election to the Legislative Assembly of Maharashtra.

Similarly, the 13 MPS supporting Petitioner garnered 74,88,634 votes out of total of 1,02,45143 votes i.e ~73 % of votes polled in favor of 18 MPS in general election to the Lok Sabha ,2019. This contrasts with 27,56,509 votes garnered by 5 MPS supporting Respondents (although claimed 6 and affidavits filed by only 4) i.e 27 % of votes polled in favor of 18 MPS. Further, as against 1,25,89064, the total votes polled by Shiv Sena in Lok Sabha election, 2019 (including the losing candidates), votes polled by 13 MPS supporting the petitioner comes to ~59 % whereas votes polled by 5 MPS (claimed 6 whereas affidavits of only 4) supporting the Respondents comes to -22 % .

Conclusion:

In view of the foregoing arguments made by the Petitioners and the Respondent a contestation can be discerned both with regard to the sequencing of the steps and invoking the normative significance of each test in relation to the other. Of the 3 tests laid down in Sadiq Ali; i.e. “Aims and Objects, “Test of Party Constitution” and “Test of Majority”, it is the last test which consists of test of majority in organisational wing and legislative wing and is capable of yielding a numerical basis. In this regard it is noted that ECI has found that the organisational aspects are invariably falling short, in the absence of normative clarity a priori. Inner workings of the Political Parties which are to be transparent and well disclosed to rank & file and, to the citizens at large, should be 24×7 work in progress. Unfortunately, it not being so, creates a crisis of credibility in assessing claims of positional support. In comparison the legislative wing tests yield an immediately reliable outcome. The status of being a Lok Sabha MP or, a Rajya Sabha MP or, an MLA or, an MLC, follows from The RP Acts 1950 & 51. Thus, it, as a starting universe of a comparative count, posits itself as of highest quality evidentiary value.

The Commission has also assessed the issue whether the organisational wing and the legislative wing and the respective tests are capable of being viewed so distinctly as some times they are posited in the arguments. From the very scheme of the R P Act, 1951 and the provisions of the Symbols Order, it is evident that the relationship between the organisational and the legislative wing of any political party is both conjoint and dichotomous. In the act of registration, the organisation structure is the starting point. In the act of recognition, it is the electoral performance. Further, from the above view point, any interpretation which does not see conjointness in the organisation and legislative manifestation of a Political Party is not immediately convincing.

Final Order:

The Commission having elaborately dealt with all the aspects of maintainability of the petition, the fact of split in the party, considered and applied three tests as envisaged in Sadiq All. After analyzing the aforesaid submissions and issues so framed (A to D), discussed at length in the preceding paras, and taking the holistic view, this Commission is of the considered view that:

The present proceedings are clearly maintainable” both as substantially fulfilling the matrix 18id down in Paragraph 15 of the Symbols Order in ternis of the facts made available to the Commission, and the impact of pendency of “disqualification proceedings” having been comprehensively argued in the Honble High Court and Honble Supreme Court. Further, the jurisdiction of the Commission in deciding disputes under Paragraph 15 of the Symbols Order is separate and independent from that of the jurisdiction of the Honble Speaker with respect to disqualification proceedings under the Tenth Schedule and does not overlap (as dealt in issue A);

II. Split has occurred in the Shivsena Paty (as dealt in issue B);

III. Of the three tests mentioned in the Sadiqq Ali case (supra) for the purpose of adjudicating the present dispute, firstly the Test of Aims and Objects of the Party Constitution, was considered. Petitioner asserted that it isthe Respondent who, in the act of forniing a coalition with Parties of different ideology, has deviated from the “Aims & Objects, of the Paty, the same formed the core point of disagreement and disappointment in the rank and file, and that is the genesis of the present dispute. The Respondent’s claim was that the ideology of the Shivsena, as described in Article V of the Paty Constitution, is that “the Party shall be Committed to rational secularism socialism and national integrity” and that there was no departure from following such ethos by the Respondent or the Pary. It was seen that neither of the two factions had made any significant avernients on the application of this test and thus, the same was found to be inapplicable in the circumstances of the present case (as dealt in issue C); and, that,

IV. While applying the -Test of Party Constitution”,

a. The Cornmission examined the 2018 Constitution of the party in detail. Non-communication of both the “material change” amendment and of the equally important process of the amendment in the Constitution of the party is non-compliant with the conditions of registration as communicated by the Election Commission of India to Shiv Sena vide its letter No. 56/R/ 166/89/5147-80 dated 19. 10. 1989. These conditions Interalia stipulate in para 2, the statutory requirements under section 29 A of RP Act, 1951; and also, clause (xviii) and (xx ii) of the Guidelines prescribed by the ECI in 2010, which have issued in exercise of powers conferred by Article 324 Constitution of India and Section 29 A of the RP Act, 1951;

b. The amended Constitution of 2018 is not on record of the Commission;

c. While applying the Test of Party Constitution” found that the Party Constitution on which placing strong reliance is undemocratic;

d. The complete list of office bearers of various bodies was not provided to commission whenever elections were held or the appointments were made;

e. The amendments in the Constitution in 2018 had undone the act of introducing democratic norms in the Party Constitution of 1999 and the functioning of Shivsena, brought by Late Balasaheb Thackeray at the insistence of the Commission. The amended Constitution of 2018 displaces the agreed, Constitution of 1999, that too without a confirmation or scrutiny of the amendment process itself having been followed diligently;

f. The Constitution of 2018, confers widespread powers of making various organisational appointments on a single person. Thus, the undemocratic norms of the original Constitution of Shivsena, which was not accepted by the Commission in 1999 have been brought back in a surreptitious manner further making the party akin to a fiefdom;

g. Further, the 2018 Constitution, by way of its plain reading on the vital axis of  remedy/modality  of dissent, in such factual circumstances, stifles all options of rival group(s) in its very formulation.

h. Article XI(B) of the 2018 Constitution of the Party states that the Rashtriya Karyakarini shall be elected by the Pratinidhi Sabha. Thus, the Rashtriya Karyakarini is a body which is in fact ‘elected’ by a largely ‘appointed’ Pratinidhi Sabha. To sum up the situation, it is apt to quote the observation of the Commission conveyed to Shiv Sena in the year 1999 through the then Chief Electoral Officer, Maharashtra, on the draft amendments:

‘To put in nutshell, the party Constitution envisages the President nominating the Electoral College that is to elect him. This goes against the spirit of democracy and negates the very purpose for which the entire exercise was carried out”

The paradox of India being the world’s largest democracy and its political field being occupied by some Parties which are being treated as fiefdoms is disconcerting. For a truly functioning democracy, it is important that one of the key stakeholders i.e., the political parties are run in a democratic manner and this in turn can be ensured only if the Constitution being adopted by them does not allow concentration of power in the hands of a few. Therefore, any reliance on the “Test of Party Constitution” for determining the present dispute case will be undemocratic and catalytic in spreading such practices across parties (as dealt in issue C);

V. It is reiterated that as per the 2018 Constitution of the Party, the Rashtriya Karyakarini is the apex representative body of the Shivsena with strength of 13 members. However, on examining its composition, it was found that the said body was elected by a largely appointed Pratinidhi Sabha. Further, neither of the faction provided details of the actual existing strength of the body. Similarly, the list of office-bearers as communicated to the Commission vide letter dated 27.02.2018 does not reflect the details of the members of the Pratinidhi Sabha. Thus, the Test of Majority in the organisational wing could not yield determinable or “satisfactory finding due to reasons specifically detailed in paragraph 109;

The holistic view of the facts, precedents and court rulings have broadly revealed that:

No serious contestation on facts by either side of numerical outcome of legislative wing test has emerged.

There is ‘democratic deficit, in the amended Constitution, the process of its amendments and its working.

That respective claims of numerical majority in organisational wing by both factions is not satisfactory.

That combined reading of the respective numerical counts in the present case, more reliability emerges in the legislative wing.

That within the number count, overwhelming numerical superiority of Petitioner in legislative wing is categorically verifiable. The numerical count included all MPS, MLAS and MLCS.

Therefore, through a conjoint and wholesome reading of outcome of the tests and embedding the democratic imperative, all aspects, there is a recognisable basis in the factual material of this dispute, to discern the outcome of legislative wing test as the fulcrum, reflecting both, the fact of the split and, majority.

Full Judgement (PDF):