Explained: How Eknath Shinde's party was identified by the Election Commission as the real Shiv Sena

The Eknath Shinde faction received the Shiv Sena office in Parliament House on February 21, 2023, after the Election Commission recognised them as the legitimate Shiv Sena.

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

But, a crucial element of the continuing Sena vs. Sena conflict is undoubtedly the process by which the election commission (EC) determined which party is the real Sena.

The Majority Test

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

Congress (J) conflict using the "test of majority," 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 supported the EC's judgement.

Why Were Other Tests Rejected?

Further requirements include "tests of party constitution" and "tests of purposes and objects," among others. Similar to the Congress split case from roughly 50 years ago, the EC dismissed the other two in the Sena v. Sena case. Both parties asserted adherence to goals and objectives. The EC concluded that it was unable to rely on this criterion.

Shiv Sena's constitution was changed in 2018 to give party president Uddhav Thackeray the authority to nominate and remove officeholders. However, the EC stated in its order that the party had failed to submit the amendment-related document, in violation of the Representation of the People Act of 1951.

Second, if the "test of constitution" criterion were applied, the EC would need to know how many of all office holders supported each faction. But then it would most likely run into trouble since the entire electoral college within the party would be made up of individuals Thackeray appointed. This clause in the Shiv Sena constitution was deemed "undemocratic" by the EC.

Experts are divided on the EC's order

On the Commission's order, constitutional scholars have differing opinions. Former Indian chief election commissioner Om Prakash Rawat stated that the Commission always takes into account all relevant criteria, including the party's goals and objectives, support from party officials, and majority in the legislative wing.

But, only the test that is devoid of disagreement or challenge is taken into account, Rawat said in a statement. "A test is discarded if there is any disagreement over it. Most of the time, counting the MLAs and MPs is sufficient to reach a decision."

Rawat further emphasised that the Commission's decision only affects which side receives the emblem and name and has no influence on other factors like property. PMP Achary, a former secretary general of the Lok Sabha, contends that the Commission's order is flawed.

According to Achary, "the party is the organisation and can exist even without a legislative wing." "Thus, organisational strength must be considered."

According to Achary, the Commission cannot make decisions only based 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.