In such cases, like the recent split within the LJP, the election commission must use guidelines and precedents to make a decision
The sudden and dramatic developments in the Lok Janshakti Party (LJP) have caused quite a storm in the political circles. I have been flooded with queries about the procedures involved and the role of the Election Commission in settling the dispute.
The EC does not take suo motu cognisance of such cases and comes into the picture only when one party approaches it with its claim. The Commission then starts proceedings which are quasi-judicial in nature, under Section 15 of the Election Symbols (Reservation and Allotment) Order, 1968, by giving a notice to the other faction to give its version. Both parties are asked to produce evidence in support of their claim, accompanied by affidavits.
It is important to see what Section 15 of the Symbols Order, lays down: “When the Commission is satisfied on information in its possession, that there are rival sections or groups of a recognised political party, each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case … decide that one such rival section or group, or none of such rival sections or groups, is that recognised party, and the decision of the Commission shall be binding and on all such rivals sections or groups.”
The EC examines the claims and counterclaims of the two factions to determine which one has the majority. This includes MPs, MLAs, MLCs on the one hand, and the office-bearers of the party, on the other. Both factions often question and contest the supporters’ list of the other faction as inflated, containing many bogus signatures. Determining the genuineness of signatures is time-consuming and often a frustrating job. As the lawyers get involved, the whole process can normally take four to five months.
A split in a political party is not a new phenomenon. There have been several cases in the past, with both factions seeking recognition as the real party. The most important case is that of Indian National Congress which split in 1969 leading to the formation of two parties — Congress(O) and Congress(I). Subsequently, Congress split a second time in 1978 when Congress (Indira) and Congress (Tiwari) were created. In the 1980s, in Tamil Nadu, AIADMK split into two factions, one led by MGR’s wife Janaki and the other by J Jayalalithaa. Later, the Janata Dal went through a similar process, becoming JD(U) and JD(S). In 2012, we had a similar situation in Uttarakhand where the Uttarakhand Kranti Dal split and, in UP in 2017, where the Samajwadi Party split just before the elections.
In all these cases, the EC went through the above-mentioned process. The EC looks at the strength of each group, in the party’s organisation and in the legislatures, applying the test of majority. Whenever the EC could not determine the strength of rival groups based on support within the party organisation, it fell back on testing the majority among elected MPs and MLAs.
Many of these cases have landed in the Supreme Court. The most significant case was that of the INC in 1969 where the Supreme Court upheld the order of the ECI applying the test of majority (Sadiq Ali vs ECI, 1972). It was a milestone judgment for the Election Commission as the apex court upheld the constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968, giving an executive order the status of subordinate legislation.
“The symbol is not a property to be divided between co-owners … And in case of a split, the Commission has been authorised to determine which of the rival groups or sections is the party entitled to the symbol. The Commission, in resolving this dispute, does not decide as to which group represents the party, but which group is that party,” a three-judge Supreme Court Bench of Justices HR Khanna, KS Hegde and AN Grover clarified the purpose of Paragraph 15.
The Supreme Court has, time and again, upheld the test of majority in the Symbols Order to be a “valuable and relevant test” to decide a dispute between rival groups within a “democratic organisation” like a recognised political party.
How did the EC deal with such matters before the Symbols Order came into effect? Before 1968, the poll panel issued notifications and executive orders under the Conduct of Election Rules, 1961. The most high-profile split of a party before 1968 was that of the Communist Party of India in 1964. A breakaway group approached the ECI in December 1964, urging it to recognise them as the CPI (Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them. The ECI recognised the faction as the CPI(M).
At that time, the EC had no guidelines or precedents to fall back on. Using common sense, it gave its verdict through a notification. Not long thereafter, the Commission decided to frame guidelines and issued the election symbols order 1968. In its very first case thereafter, it applied the test of majority in the Congress party split. The SC upheld this principle, which has been followed ever since. And it has never gone wrong.
This principle was followed up to 1997 when the EC introduced a new rule under which while one faction got the party symbol, the other had to register itself as a separate party. The national or state party status of the new formation would be determined only on the basis of its performance in state or central elections after registration.
It has always been the practice of the commission to give a detailed, speaking order which will stand judicial scrutiny. This is why the EC’s quasi judicial or administrative orders almost always pass the judicial test. It would be interesting to see how the present case proceeds.
The writer is the former Chief Election Commissioner of India and a Distinguished Fellow at Ashoka University
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