Recently, the Election Commission of India (ECI) began its hearing on the split within the Nationalist Congress Party under Paragraph 15 of the Election Symbols Order, 1968. In the past, the ECI has decided such disputes using the test of majority which has of late come under heavy criticism. The present case offers an opportunity for ECI to fashion a new test that takes into account recent developments in law..—.THE Election Commission of India (ECI) began hearing on the split within the Nationalist Congress Party (NCP) on October 6, 2023..Recently, the ECI recognised the emergence of two rival groups within NCP, one led by Sharad Pawar, and the other led by Ajit Pawar, with each staking claim as the 'real political party'..Consequently, the matter was taken up by the ECI under Para 15 of the Election Symbols (Reservation & Allotment) Order, 1968. This will be the first time the ECI is deciding a dispute under Para 15 after the Supreme Court's verdict in Subhash Desai versus Principal Secretary, Governor of Maharashtra. .This article presents the background of the case and examines the outcome of the decision in Subhash Desai, further analysing the trajectory of similar disputes decided by the ECI under Para 15..It also highlights the expected deviations that the ECI is supposed to make from its modus operandi under Para 15 and its impact on future disputes..Background.On July 3, 2023, Ajit Pawar, leader of the NCP, took oath as the deputy chief minister of Maharashtra. In this, he joined ranks with the incumbent coalition government of Shiv Sena (Shinde faction) and the Bharatiya Janata Party (BJP)..Also read: Defects writ large in the anti-defection law.Two days later, On July 5, he submitted a petition before the ECI claiming the 'symbol' and 'name' of the NCP. He also claimed the support of 40 members of Parliament, legislative assembly and legislative council and stated that a resolution was passed on June 30, 2023 to appoint him as president of the NCP..“The reason for denying the assertion of a 'split' within the NCP was to preclude the jurisdiction of the ECI under Para 15 to decide which is the 'real' political party..Initially, Sharad Pawar, president of NCP, downplayed the rumours of a split within the party. In his preliminary response, he submitted that there was no evidence to suggest that there was a split within the NCP..Also, since Ajit Pawar had never raised any grievance against Sharad Pawar or availed any internal remedy within the party, his petition must be dismissed as being 'mala fide' and 'premature'..The reason for denying the assertion of a 'split' within the NCP was to preclude the jurisdiction of the ECI under Para 15 to decide which is the 'real' political party..Why was the Ajit Pawar faction hesitant to submit to the jurisdiction of ECI? The answer lies in previous decisions of the ECI wherein it has decided similar intra-party disputes. .Tests to determine the 'real' party.Para 15 of the Symbols Order does not provide any substantive or procedural mechanism to be followed by the ECI in order to determine the 'real' political party..In absence of any such determinative criteria, the ECI fashioned three 'separate' tests to resolve disputes under Para 15: .Test of analysing the provisions of the constitution of the party.Test of assessing which of the two rival groups adheres to the aims and objectives of the party as incorporated in its constitution.Test of evaluating which of the two rival groups enjoyed a majority in the legislature (i.e., the Houses of the Parliament as well as the legislative assemblies of states) and in the organisational wing of the party..Also read: Maharashtra speaker berated for indecision on disqualification petitions despite SC Order.However, the position remained unsettled until Sadiq Ali and Anr versus Election Commission of India. In Sadiq, the Supreme Court held:."Where, however, the question arises as to which of the rival groups is the party, the question assumes a different complexion and the numerical strength of each group becomes an important and relevant factor. ."We have no hesitation in holding that in the context of the facts and circumstances of the case, the test of majority and numerical strength was not only germane and relevant but a very valuable test.".Evidently, the findings of the court do not support the conclusion that the test of majority is the sole criterion to be applied. It merely recognised the test as a valid one under Para 15..“A splinter group in the legislative wing will necessarily be deemed to be disqualified under the Tenth Schedule. Consequently, in such a situation the ECI will not be able to clearly ascertain which legislators should be considered part of the legislative wing..However, the ECI, post-Sadiq, has consistently followed and applied the test of majority in the organisational and legislature wings of the parties whenever a dispute has arisen since 1971 for determination in terms of Para 15 of the Symbols Order..The application of the test of majority without applying the mind to the facts and circumstances of a particular case is problematic for two reasons..First, the ECI, while calculating numerical strength, does not have the institutional machinery to calculate the numbers inside the organisational wing..For instance, in a dispute case of All India Anna Dravida Munnetra Kazhagam (AIADMK), ECI observed: ."[The] commission cannot be expected to hold a referendum among the primary members of the party, and verify the individual claims of persons claiming to be primary members, in order to ascertain the relative support of the two rival groups among those primary members.".Therefore, the ECI, to calculate organisational strength, evolved a criterion of counting the members who are part of the 'apex representative body' of the party. However, this criterion has considerable limitations..Also read: Who is the real Nationalist Congress Party? Déjà vu of Maharashtra political crisis.One, the ECI often is blind to a party's organisational structure and has no idea who the members are and how to assess their opinion on the party split..Moreover, the ECI has not evolved any mechanism which can be used to identify such a body within the organisation wing of the party..In any case, even if the 'party constitution' specifies such a body, the ECI will not rely on the numerical strength of such a body if it is 'undemocratic' and not a 'truly democratic body'..In fact, Uddhav Thackeray lost claim to his party earlier this year because the apex body (Rashtriya Karyakarini) of Shiv Sena suffered from a 'democratic deficit'..Cumulatively, these defects make the test of majority a unidimensional test, i.e., numerical strength of the legislative wing..The second problem with the test of majority is the sole reliance on numerical strength of the legislative wing..The Symbols Order was enacted prior to the insertion of the Tenth Schedule, which deals with the disqualification of sitting members of the Parliament and state legislatures on the grounds of defection..In other words, if a legislator voluntarily leaves the 'original political party', which set him up as a candidate, he will be disqualified as a legislator..“In light of Subash Desai, the ECI cannot use the test of majority merely because the other two tests are inapplicable or that it has been consistently used to decide such disputes before..Therefore, the ECI, while counting the numerical strength of the legislative wing, can only include legislators who are not disqualified. However, such a determination can only be made by the speaker (see also here a debate on the 'different fields theory')..The situation is further complicated after the deletion of Para 3 of the Tenth Schedule, which left no basis for recognising a 'split' in the legislative wing of the party..Also read: A case for removal of Paragraph 4 of the Tenth Schedule to the Constitution.So, a splinter group in the legislative wing will necessarily be deemed to be disqualified under the Tenth Schedule. Consequently, in such a situation the ECI will not be able to clearly ascertain which legislators should be considered part of the legislative wing..Unfortunately, the ECI wilfully ignored this conundrum while declaring the Shinde faction as the 'real' Shiv Sena. Disqualification petitions against the members of that faction are currently pending before the speaker..The above two loopholes in Para 15 of the Symbols Order make political parties wary of submitting to the jurisdiction of the ECI. In fact, the chances of real stakeholders of the party losing claim to it are heightened in such proceedings..Subhash Desai on Para 15.In this case, the Supreme Court made certain important observations regarding Para 15: ."[N]either the Symbols Order nor Sadiq Ali indicates that this is the only or even the primary test to be applied while determining disputes under Paragraph 15.."The ECI may apply a test that is suitable to the facts of the particular dispute before it. It need not apply the same test to all disputes, regardless of the suitability of the test to those facts and circumstances.".The above observations make it incumbent upon the ECI to apply its mind to the facts and circumstances of each case before picking which test to use while deciding a dispute under Para 15..In the past, the ECI has used the test of majority merely on the ground that it has been "consistently followed and applied whenever a dispute has arisen since 1971 for determination in terms of Para 15"..However, in light of Subash Desai, the ECI cannot use the test of majority merely because the other two tests are inapplicable or that it has been consistently used to decide such disputes before..Rather, it will have to provide reasons about the suitability of the test and its applicability to particular facts..This provides, however limited, a safeguard against the mindless usage of the majority test. In fact, in Subash Desai, the Supreme Court observed that it was futile to apply the test of majority in the legislature to the present case and the ECI must have applied another test suitable to the facts..Also read: In the aftermath of the SC judgment in the Maharashtra political crisis case, more questions sprout.Another important observation made by the court was regarding the test of assessing which of the two rival groups adhered to the aims and objectives of the party as incorporated in its constitution..The court implicitly rejected this test as "an entirely subjective exercise" and "without any objective basis". In future, we can expect the ECI to discard this test entirely..Regarding the sole reliance on a majority in the legislative wing, it noted: "When legislators are disqualified under the Tenth Schedule, the basis of recognition of the political party under the Symbols Order and correspondingly, one of the reasons for using the test of legislative majority itself becomes diluted… Nothing in the Symbols Order mandates the use of a particular test to the exclusion of other tests…."The parties in the dispute before the ECI are free to propose a suitable test and the ECI may either apply one of the tests proposed or fashion a new test, as appropriate.".The above observations recognise the overlapping jurisdiction of the Tenth Schedule and the Symbols Order. It acknowledges that the outcome of the dispute before the ECI may change depending on the outcome of the disqualification petitions..“The decision of the ECI in Shiv Sena, wherein it relied only on the numerical strength of the legislative wing, is erroneous in law.Accordingly, the test of majority in the legislative wing, with the advent of the Tenth Schedule, is no longer viable to determine disputes under Para 15..Therefore, the decision of the ECI in Shiv Sena, wherein it relied only on the numerical strength of the legislative wing, is erroneous in law. In future, the ECI can be expected not to rely solely on this test..In its observations, the Supreme Court has nudged the ECI to fashion newer tests that take into account the intersection of the Tenth Schedule with Para 15 of Symbols Order..Also read: Understanding the gaps in the anti-defection law.It will be interesting to see whether the ECI maintains the status quo in the present case or comes up with new tests to determine the dispute..NCP dispute: An opportunity?.After Subhash Desai, the ECI cannot use the test of whether the groups were adhering to the aims and objectives in the constitution of the party. Also, the ECI has always found itself incapable of applying the test of whether any faction has violated the provisions of the party constitution..In the present case, there is no indication whether Ajit Pawar's faction has functioned contrary to the party's constitution. Therefore, at the outset, these two tests will be inapplicable in the present case..This leaves us with the test of majority. As noted previously, the Supreme Court has expressed its circumspection on applying the test of majority in the legislative wing..I have previously argued here how, after the insertion of the Tenth Schedule, the test of majority is an irrelevant consideration in the legislative wing of the party..“The ECI may choose to apply the test of majority in the organisational wing without considering the numerical strength in the legislative wing..Considering how the test of majority is irrelevant in the legislative wing of the party, it is reasonable to expect that the ECI will not rely on numerical strength in the legislative wing either solely or in combination with a majority in the organisational wing. So, what will the ECI do? .In para 150 of Subhash Desai, the Supreme Court notes: ."[T]he 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.".Relying on this, the ECI may choose to apply the test of majority in the organisational wing without considering the numerical strength in the legislative wing..Also read: Which is the original Shiv Sena?.However, it is reiterated that solely relying on numbers in the organisational wing suffers from its own set of problems. Most importantly, the rider of a 'democratic spirit' inserted by the ECI turns the table against people helming the party..In light of the above, it is submitted that the ECI, in deciding the present dispute, must come up with a new test which:.(i) Discards the numbers in the legislative wing..(ii) Provides proper criteria to assess numerical strength in the organisation wing..(iii) Discards the requirement of a democratic spirit..In any case, the ECI must remind itself that whichever test it comes up with will have tremendous ramifications for representative democracy in India.
