Shreenath A. Khemka writes: Eknath Shinde or Uddhav Thackeray, who is the real Shiv Sena

In the 2019 Maharashtra Assembly election, the BJP emerged with 106 MLAs, the Shiv Sena with 56, the NCP with 53, and the Congress with 44. The majority mark of 145 had been achieved by the BJP-Sena alliance. However, at the last minute, the Sena joined hands with the NCP and Congress to form the government. This was seen by many as a political and ideological betrayal. Political, because the Sena had agreed to a seat-sharing arrangement with the BJP, whereby the latter did not contest from the former’s seats. Ideological, because the far-right Sena had dumped its right-wing compatriot for left-wing competitors. While Thackeray did capture Jerusalem, his crusade turned a good chunk of his generals sceptical. Ultimately, the 39 “rebel” MLAs led by Shinde broke away. The Thackeray group petitioned the deputy speaker to disqualify 16 of the 39 for having defected, and the Shinde group petitioned the Supreme Court for greater time to respond to the disqualification notices. The Supreme Court refused to stay the floor test. Subsequently, the Shinde Sena resumed its alliance with the BJP, with Shinde becoming the chief minister and the BJP’s Rahul Narwekar the new speaker.

Despite possessing more than two-thirds of the Sena MLAs, the Shinde group would invite disqualification for defection under the Tenth Schedule, unless it merged with another political party. However, there has been no merger so far. In such circumstances, it would become imperative for the Shinde group to establish itself as the Shiv Sena, so that its 39 MLAs would have to neither voluntarily give up party membership under Para 2 (1)(a) of the Tenth Schedule, nor would they have flouted the Uddhav Thackeray-controlled party-whip, under Para 2 (1)(b), to merit disqualification.

The Samyukta Socialist Party case (1967) was the first big case of a political split before the EC. The SSP was formed as a result of the merger of the Praja Socialist Party (PSP) and the Socialist Party in 1964. But the two parted ways a year later. It was easy to identify that the PSP had exited as a block, and the remainder of the SSP was nothing but the Socialist Party. The case led to the Election Symbols (Reservation and Allotment) Order 1968, notably Para 15 which conferred upon the EC the power to determine which of the rival groups could lay claims to being the original party.

In the Sadiq Ali case (1972), the Supreme Court was tasked with determining which of the rival groups — Congress-O or Congress-J — would be the Indian National Congress (INC). It was held that a mandate within a political party would be democratic, wherein the group’s majority in legislatures as well as in the organisational structure would be relevant. This is known as the Test of Majority. It was also held that the group should have greater proximity to the ideological objectives of the political party — the Test of Aims and Objectives. It was found that the overall majority in the various legislatures as well as in the organisational structure was commanded by the Congress-J. The party was, accordingly, declared as the INC. A year later, the Ramashankar Kaushik case allowed the SC to elucidate the Test of Majority. The Court held that the Ramashankar faction was not the Socialist Party, as there was no continuity between the constitution, office-bearers, and membership of this group and the Socialist Party.

Whilst the Shinde group commands a majority in the Maharashtra Assembly, the legislative majority as per the Sadiq Ali case would be determined on an overall basis, across all legislatures and corporations. The Thackeray group may yet wield organisational majority across the party cadre, especially at the municipal level. Curiously, in the Thackeray-Shinde feud, the Test of Majority may prove inconclusive with the legislative majority falling to one group, and the organisational majority falling to the other. Such a quandary is unprecedented. Though organisational majority is a better indicator of association with the original party, the EC is likely to weigh in favour of the legislative majority, given that the recognition of political parties under the 1968 Order is on the basis of their electoral performance.

Interestingly, in the Sadiq Ali case it was argued that the Test of Majority would be of no consequence as the Congress-J had ideologically deviated from the INC. The Supreme Court rejected the argument based on its finding that there was no ideological divergence between the Congress-J and Congress-O. However, what was not explicitly clarified was the ability of a major rival group to claim continuity, despite ideological variance, with the original political party. This is the second curious aspect of the Thackrey-Shinde feud.

For either group, winning the Test of Majority may be easily thwarted by claims of ideological variance. The Thackeray group may be criticised for steering the Shiv Sena away from Hindutva, whilst the Shinde group could be censured for divorcing itself from the legacy of Bal Thackeray. Judicial determination of these considerations may lead to a political quagmire, and the EC may be inclined to settle the debate solely on the basis of the Test of Majority. And rightly so. Matters of political ideology are best left to the electorate, as government formation is best left to the floor of the House.

In this grand game of political chess, Thackeray’s stalemate is likely to persist. Shinde’s Sena may turn the tables by petitioning the new Speaker to disqualify the Thackeray group. However, the real battle for the Sena’s legacy will be fought before the Election Commission.

The writer is an advocate at the Punjab and Haryana High Court