'Shinde Sena Is Real Shiv Sena': Four Questions ECI Asked Itself To Settle The Issue

When the Shiv Sena of Maharashtra split last year, it was inevitable that there would be an ugly scramble for ownership of the party name, and its symbol – a bow with an arrow nocked upwards.

One faction led by then-sitting Chief Minister Uddhav Thackeray, and his son Aaditya, claimed that the party name and symbol were theirs because the party was founded by Uddhav’s father, Bal Thackeray.

The other faction, led by current Chief Minister Eknath Shinde, argued that the party was theirs because they represented what Bal Thackeray stood for.

This was a sly dig at Uddhav, who betrayed the party cadre’s trust in 2019 by breaking ranks with their resolute ally of many decades, the Bharatiya Janata Party (BJP), to reverse the party’s core political philosophy of standing against minority appeasement and secularism, to unthinkably join hands with precisely such types – the Nationalist Congress Party of Sharad Pawar, and the Congress of Sonia Gandhi.

Since such emotional arguments had no place in the world of governance, the matter took three simultaneous routes.

First was the legislature where the Shinde faction, in alliance with the BJP, proved its majority.

Second, it went to the courts, where the Thackeray faction demanded that the Shinde faction MLAs be disqualified for having broken away. A verdict is still awaited.

And, third, it went to the Election Commission of India (ECI). This was crucial, since, that faction which was recognised as the real Shiv Sena would have a huge symbolic advantage, both in byelections if the courts disqualified defectors, and in the assembly and general elections due in Maharashtra in 2024.

The ECI issued its verdict on 17 February, awarding both the party name and the symbol to the Eknath Shinde faction. Uddhav Thackeray was caught out in the cold, there was enough egg on his faction to feed a hungry battalion, and the BJP’s hoots and jeers only added to the general ignominy. 

But, beyond gain, loss, and schadenfreude, stands the ECI’s verdict. It is a masterful document drafted with laudable meticulousness and flair, in the finest traditions of the civil services. The facts, calculations, inferences, and conclusions are presented in a simple, cogent, style leaving little scope for ambiguity or misinterpretation.

To settle the matter, the ECI asked itself four questions:

• One, did the Shinde faction have the right to claim the party’s name and symbol, when disqualification proceedings were on against its MLAs for having broken away?

• Two, was there a split in the Shiv Sena? (The question might seem superfluous today, but we must bear in mind that when these proceedings began in June 2022, matters were anything but clear)

• Three, if a split has occurred in the party, how should the ECI decide which faction has a majority?

• And, four, which faction shall, then, retain the party name and symbol.

The case was argued before the ECI by large teams of senior legal eagles on both sides. The Thackeray faction’s team was led by Kapil Sibal, and the Shinde faction by Mahesh Jethmalani. 

Elaborate, compelling arguments were made by the Thackeray faction on the first matter, of whether the Shinde faction had a right to make its claims on the Shiv Sena’s name and symbol, even as disqualification proceedings were on against their MLAs. 

The ECI’s verdict was that the Shinde faction indeed had a claim-right, because, as strange or counter-intuitive as this may sound, the disqualification of an MLA from a legislature for having defected had nothing to do with an MLA’s membership in a party. Disqualification proceedings are governed by the Tenth Schedule of the Constitution, whereas membership is determined by a party’s constitution – two very different documents.

This is an important point, because we can now better understand why Eknath Shinde never once sought to form a new party when the crisis erupted. This is because, from the start, he maintained that his faction was the real Shiv Sena (hence, the question of 'defection' doesn't arise) and that he had no intention of creating a separate outfit; he and his colleagues took this drastic step only because they wanted to preserve those ideals Bal Thackeray stood for, and because the son rejected those ideals to join hands with precisely those secular forces the Shiv Sena was established to defeat.

The second issue, on whether a split had taken place in the Shiv Sena, or not, might seem like a tediously legalistic exercise, but it is a bureaucratic necessity with serious implications, which has to be undertaken.

The key question here was whether a split in the legislative wing of a recognised party is equal to a split in a party, because, lest we forget, the name and symbol up for grabs by both factions, would belong to that faction which is finally identified as representing the recognised party.

And, here, the ECI laboriously presented all the information and dispositions presented to it, including two crucial points: both factions held separate legislative party meetings on 21 June 2022 electing separate leaders of the party in the legislature, and both factions elected different leaders to head the party. These are vital distinctions.

The third issue was the most important one: having decided that the Shinde faction had a right to claim to the party symbol and name, and, that a split had indeed taken place in the Shiv Sena, the ECI now had to decide which faction had the majority.

The ECI has three rigorous tests for this purpose.

One, the ‘Test of Aims and Objects’. The results were inconclusive since both factions stated that they upheld the same ideals upon which the Shiv Sena was founded.

Two, the ‘Test of Party Constitution’. It is a measure of the representative worth of a leader elected by the party cadres, and not the electorate. And this is where Uddhav Thackeray’s past, cavalier high-handedness came back to bite him hard.

All recognized political parties were asked to submit their constitutions to the ECI in the late 90s, to ensure that democratic intra-party processes were followed as per the Representation of Peoples’ Act (RoPA). The Shiv Sena complied satisfactorily in 1999.

By this law, changes to a party constitution had to be approved by its main governing body, and very importantly, communicated with authenticated proof to the ECI. But in 2018, Uddhav Thackeray changed the Shiv Sena’s 1999 constitution; he contrived to tweak it, to basically ensure that he had the final say in the appointment of people to key party posts.

This was not communicated to the ECI. Instead, as the ECI notes in para 83 of its order, it was informed on 25 January 2018 by Anil Desai of the new Shiv Sena office bearers elected, but they were not informed that these elections and appointments were made under an amended party constitution. 

Thus, the ‘Test of Party Constitution’ too, couldn’t be applied conclusively. Damningly, the word used by the ECI for this sleight of hand was ‘obfuscation’. 

Three, the ‘Test of Majority’: this was the ECI’s hammer blow on the Thackeray faction. Having previously established that a test of majority couldn’t be applied conclusively on the party’s organizational wing because that was largely an appointed body under an amended constitution without validity, the ECI applied the majority test to the Shiv Sena’s legislative wing.

And in this, there was nil confusion. The votes received by members of the Shinde faction in general elections to both the state legislature and the Lok Sabha were tallied separately, and compared to those received by the Thackeray faction. 

Obviously, the Shinde faction won, because they had 40 of the 55 legislators, and 13 of the 19 Lok Sabha members. And that, as they say, was that.

So, the Eknath Shinde faction is now the real Shiv Sena. The rebel tag is history. There are no factions, and the chances of Shinde and his rebels being disqualified have reduced. However, even if the Sena legislators are disqualified, they will enjoy the advantage of contesting their byelections on the potent bow-and-arrow symbol of party founder Bal Thackeray.

This ECI verdict is welcome news to the BJP, since they can now look forward to three forthcoming elections with greater enthusiasm – to the Mumbai corporation, the state assembly, and the Lok Sabha.

As for Uddhav Thackeray and his son Aaditya, having been ousted from their own party because of their over ambition, they are left only with the surname; all else that matters have been formally awarded to Eknath Shinde. This is the way of the dynast in a changing India – to be pushed into an irrelevant corner of their own making, and left to linger fruitlessly there, sans party, sans symbol, and sans face. Such is life.