Guest Post: The Shiv Sena Dispute – the Tenth Schedule and the Symbols Order

[This is a guest post by Yogesh Byadwal.]

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Recently, the Election Commission announced its order in the Shiv Sena dispute allowing the Shinde-faction to retain the party name ‘Shiv Sena’ and the party symbol ‘Bow and Arrow’. The case was unique, as argued by respondent, because it was the first time when disqualification proceedings overlapped with proceedings under Para 15 of Symbols Order. However, the commission rejected this contention and decided against deferring the proceedings until the speaker could decide on disqualification proceedings. I argue that the reasoning applied by the Commission in answering the question that the Tenth Schedule and the Symbols Order operate in ‘different fields’ is erroneous and the two are intertwined. I further elaborate the logical consequence which must follow in deciding a dispute under Para 15. I argue that the Commission, by not acknowledging the connection between the two laws, encourages political defections and violates the purpose of 10th Schedule. In my opinion, it is time to close the gaps which exist in the current legal framework which assumes ‘plurality’ to lend credence to political defections.

TENTH SCHEDULE AND PARA 15

In the order, one of the issues framed was-

Whether the petition dated 19.07.2022 filed by the Petitioner is maintainable under Paragraph 15 of the Symbols Order in view of the pending disqualification proceedings.

The ECI answered the issue in affirmative. In para 54, the Commission held:

… the jurisdiction of the Hon’ble Speaker with respect to disqualification proceedings under the Tenth Schedule is separate from that of the jurisdiction of the Commission in deciding disputes under Paragraph 15 of the Symbols Order and does not overlap.

Further, in para 55, the Commission elaborated:

... disqualification of a legislator from membership of the Legislature by the Speaker is different from removal of a person from membership of a political party. The former situation is governed by the Tenth Schedule of the Constitution, whereas the latter is governed by the Constitution of the political party. The disqualification under the Tenth Schedule results in the member ceasing to be a member of the House. This does not necessarily mean that he ceases to be a member of that political party.

The Commission was using the “different fields theory” in rejecting the point raised by the respondent that the commission should defer its decision until after the disqualification proceedings  against the petitioner group is decided by the speaker or else it would result in “irreversible consequences.”

A similar line of reasoning was employed by the Commission in deciding the dispute related to Kerala Congress (Mani)[hereinafter, “KC(M)]. There, the issue was:

Whether the omission of Paragraph 3 of the Tenth Schedule by the 91st Constitutional Amendment Act, 2003 has made redundant the’ power of this Commission to decide dispute cases under the Symbols Order.

 The Commission answered, in para 28:

Tenth Schedule and the Symbols Order operate in two distinct and separate fields. The Tenth Schedule deals with the disqualification of sitting members of Parliament and State Legislatures on the ground of defection and it is the Speaker/Chairman of the House concerned who decides whether a sitting member of Parliament/ State Legislature has incurred disqualification on grounds of defection. On the other hand, the Symbols Order deals with the recognition of registered political parties by this Commission. for the’ purpose of allotment and reservation of election symbols to the recognized political party and further allotment of election symbols to the candidates sponsored by them at the time of elections.

Although the question of law in both the cases were different, the reasoning used was premised on the understanding that ‘Tenth Schedule proceedings’ and ‘Symbol order proceedings’ operate in ‘two distinct and different fields’. The implication is that the commission while deciding a dispute under Para 15 of the Symbols Order does not take into consideration the Tenth Schedule of Constitution.  This reasoning assumes that deciding one aspect has no ramifications or implications on the other. I argue that the “different fields theory” used by the commission in deciding a dispute under Para 15 is incorrect view of the law.

The Nexus

The different fields theory does not have an application when it comes to Symbols order and Tenth Schedule. The argument is apparent if we look closely at the present case.

Here, 36 MLAs from the Shinde Faction claimed to be the true Shiv Sena and defied the party whip by not attending the meetings called by the Uddhav Thackeray Faction. Therefore, disqualification proceedings were initiated against these members for indulging in anti-party activities and having ‘voluntarily given up the membership of the party’. The Speaker had not yet taken a decision on their disqualification when the order of the Commission came out.

However, after the order, the proceedings before the speaker become nugatory. Since the commission declared the Shinde-faction as the original Shiv Sena party, they never effectively left the party or indulged in anti-party activities or defied any party whip. As a result, the disqualification proceedings are, in effect, pre-decided by the order of the commission. On the other hand, the members of the Thackeray faction have now become liable for disqualification in case they do not align with the Shinde Faction. Therefore, it is wrong to assume that they ‘Symbols Order’ and ‘Tenth Schedule’ operate in distinct fields. The decision under Para 15 of the Symbols Order has significant bearing on disqualification proceedings. As was argued, ignoring this nexus between the Symbols Order and Tenth Schedule would have “irreversible consequences.”

The Commission, in arguing that disqualification under the Tenth Schedule does not mean that an individual ceases to be a member of that political party errs by not considering the inverse situation. In this case, an order under Para 15 leads to members of Thackeray faction becoming liable to proceedings under the Tenth Schedule. The theory of ‘different fields’ is hence disproved in this scenario.

Also, the Shinde faction, after forming the coalition government appointed a speaker aligned to their government which helped in stalling the proceedings. The decision of the commission further closes the gate on any possible action against the alleged rebel members.

The Effect of the Nexus

Para 15 of the Symbols Order empowers the Commission to determine, in case of splinter groups, which of the rival groups or sections is the party which was entitled to symbol. (see Sadiq Ali) Almost always, there arise splinter groups in the legislative and organisational wing of the partywhich claim to be the original party. Prior to insertion of Tenth schedule, the commission envisaged the ‘test of majority’ in order to determine which of the rival groups is entitled to the ‘reserved symbol’ of the original party. This was also upheld in Sadiq Ali And Anr. Etc vs Election Commission Of India. However, after the insertion of the Tenth schedule, I argue, the ‘test of majority’ is an irrelevant consideration in the legislative wing of the party.

Para 2 of the Tenth Schedule reads, in relevant part:

… a member of a House belonging to any political party shall be disqualified for being a member of the House … if he has voluntarily given up his membership of such political party…

Explanation.—For the purposes of this sub-paragraph,— an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member…

Para 2 of  the Tenth schedule clearly highlights that the ‘original political party’ means the party which set the elected member ‘as a candidate for election.’ Therefore, in order to determine which rival group is the original political party and entitled to the ‘reserved symbol’, the commission need only decide which group was in-charge of setting up the candidates for elections.

The above argument assumes greater significance in the present case wherein the dispute was decided by the commission by applying the ‘test of majority’ only in the legislative wing of the party. In this case, the 38 Sena rebels of the Shinde-Faction were set up as candidates to the legislative assembly by the Shiv Sena Paksha Pramukh as per Article XI of the Shiv Sena constitution. The Paksha Pramukh of the party during the elections was Shri Uddhav Thackeray who had the ultimate authority in all matters concerning the Party policy and the Party administration.

I therefore agree with Karan Kamath in his post where he argues that “the Commission’s insistence on a ‘democratic spirit’ [in the Party Constitution], once again disregards the right to associate on members’ own terms.” As a result, the non-consideration of the Party Constitution by the Commission for being ‘undemocratic in spirit’ is, in my opinion, wrong. Consequently, the commission should have deferred its decision until after the disqualifications proceedings were decided by the speaker. That way, the threat of ‘irreversible consequences’ flowing from Para 15 is thwarted as argued above. Also, it brings coherence in deciding these interconnected matters without pre-deciding an issue and upsetting other procedures in place. Then, and only then, the commission should decided the dispute under Para 15 of split in the party. This would mean the commission applying Para 2 of the Tenth schedule in recognising the ‘original political party’. As argued above, it would mean declaring the UT faction as the ‘original Shiv Sena.’

However, not only did the commission decide the matter under Para 15 before the decision of the speaker, it also applied the ‘test of majority’ in recognising the ‘original Shiv Sena.’ The  commission ignored the implications of the Tenth schedule by using the ‘different fields theory’ when in fact both the symbols order and tenth schedule have become intertwined in deciding splits in the legislative wing of the party. It also used the precedent in Sadiq Ali without acknowledging the changed circumstances after insertion of Tenth Schedule.

Moreover, as a consequence, the commission in its previous orders has failed to understand the significance of the deletion of Para 3 of the Tenth Schedule. Para 3 of the Tenth Schedule reads:

3. Disqualification on ground of defection not to apply in case of split –

Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party –

a) He shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground –

1. That he has voluntarily given up his membership of his original political party; or
2. That he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorized by it that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of  such voting or abstention; and

b) From the time of such split, such faction shell be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph.

Thus for the purpose of paragraph 3, two things were required. One is a split in the political party and one-third members of the Legislature party consists of the group splitting the original political party. (Baljit Singh Bhullar) It is clear from a reading of the said para that it recognised a split in political party only if at least one third members in legislative wing of the party split away. After its deletion, there is no basis, in constitution or statute, for recognising a split in the legislative wing in the party. Such splits have to be dealt with under the Para 2 of the Tenth schedule of the party. In this regard, I agree with Dr. Singhvi, arguing, in context of Para 3, that “if something is deleted, we must give effect to the intention of that deletion”. The reason behind deletion of Para 3 of the Tenth Schedule was on account of its ‘destabilising effect on the Government’. (see 91st amendment). The  decision was taken in the background of severe criticism against Tenth Schedule for enabling instability in governance by allowing bulk defections under Para 3&4. (see report) In light of this, the Commission was bound to not recognise the splinter group of legislative wing of the party as the ‘original political party’, more so, if it threatened the stability of government. Otherwise, as happened in this case, the commission would render the deletion of Para 3 as nugatory. As we now know, the splinter group formed a new coalition government. The decision of the commission in recognising the splinter group as the ‘original political party’ legitimises a ‘split’ in political party which, in fact, what was sought to be curbed in the first place by deletion of Para 3.

The Commission, by not acknowledging the effect of the deletion of Para 3 on the Symbols Order, fails to give effect to the Tenth Schedule of the constitution. As PDT Achary argues, constitutional law, which is the Tenth Schedule, should have precedence over a statute such as Symbols order (here). An argument that article 324 gives wide plenary powers to commission to decide issues in such manner also falls flat in light of the judgement in Mohinder Singh Gill and another v. Chief Election Commissioner which defined the ambit of article 324:

Article 324 operates in areas left unoccupied by the Legislation. The words “superintendence, direction and control” as well as “conduct of all elections” appearing in Article 324 are in broadest terms and operate in areas left unoccupied by Legislation.

Therefore, the commission must abide by the Tenth Schedule of the constitution wherever it is applicable. The commission cannot decide disputes without acknowledging the presence and effects thereof in deciding disputes under the Symbols Order, as in this case.

What next?

The order by the commission upholds a dangerous precedent. The order flies in the face of the Tenth Schedule. As observed in Kihoto Hollohan vs Zachillhu And Others:

A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival.

This judgement puts the survival of political parties in jeopardy. The SC, in upholding the Tenth schedule, recognised the fundamental role of political parties in the political process. On the other hand, the Commission, by recognising a rival group within the legislative wing as the original party, furthers the evil of political defection. It upturns the objective of the schedule to ‘curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy.’ The commission, in this case, by declaring the Shinde-faction as the original party renders the disqualification proceedings before the speaker futile. It in effect encourages political defection as long as the numbers satisfy the ‘test of majority.’ This result completely violates the purpose behind Tenth Schedule and enables further exploitation of the its inherent loopholes.

In my opinion, it is time for us to acknowledge the flaw in the reasoning underlying Para 2 of the Tenth Schedule which was highlighted in Kihoto Hollohan:

That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bonafide. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between `defection’ and `split’.

The presumption that as the number of defectors increase, there is a bonafide intention behind the defection is flawed. This loophole has been used too often in the current times to threaten the stability of state governments. We must acknowledge the role of money in luring defections irrespective of whether by individuals or groups. In the past, group defections in Madhya Pradesh, Karnataka, and recently in Maharashtra, only show that any presumption of bona fide intention is wishful thinking. However, the responsibility squarely lies on the legislature to put its house in order.