New Delhi: The Supreme Court on Wednesday observed that there must be clearly defined criteria to determine the majority in a political party when rival factions stake claim to its name and election symbol, indicating that such disputes cannot be resolved solely on the basis of the numerical strength of legislators.

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A bench comprising Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana made the observations while hearing the challenge by the Uddhav Thackeray-led faction against the Election Commission’s February 2023 decision recognising the Eknath Shinde-led faction as the “real Shiv Sena” and allotting it the party’s bow-and-arrow symbol.

The bench indicated that the concept of “majority” in a political party required a more nuanced examination than merely counting legislators.

“There should be defined criteria. If there are defined criteria, to a large extent such situations can be prevented,” it observed.

The court further said that a political party’s constitution could itself prescribe how the party is constituted and how a majority within it is to be determined.

“The Constitution of the party will prescribe how the party is constituted and how a majority within that party is to be determined,” remarked the bench, while adding that one faction may rely on elected representatives whereas another may point to office-bearers, primary members and organisational wings.

“There has to be some formula under the Election Commission’s guidelines, the party Constitution or a statute to determine how a majority is to be assessed,” it emphasised.

The observations are significant because the Election Commission is currently engaged in deciding the “real” Trinamool Congress (TMC).

And the observations assume significance because the Election Commission, while deciding the Shiv Sena dispute, ultimately relied on the numerical majority enjoyed by the Shinde faction in the legislature after finding the first two tests under the 1971 Sadiq Ali judgment inconclusive.

Senior advocate Kapil Sibal, appearing for the Thackeray faction, argued that the Election Commission had fundamentally erred by treating the legislative majority as decisive while ignoring the party’s organisational structure and constitution.

Referring to the Shiv Sena’s 2013 and 2018 constitutions, Sibal submitted that both had been duly communicated to the Election Commission and governed the party throughout the elections fought under Uddhav Thackeray’s leadership.

“From 2014 till 2022, no one ever questioned the validity of the party constitution or Uddhav Thackeray’s authority as Paksh Pramukh. The Election Commission, the Speaker and constitutional authorities all recognised the leadership under that constitution,” he argued.

Sibal contended that the Commission lacked jurisdiction under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 to declare the party constitution invalid and instead ought to have examined the organisational structure of the political party.

“So, your argument is that the Election Commission was asking the wrong question,” the bench remarked during the hearing, observing that there ought to be norms to guide such inquiries

The bench also reiterated the distinction between a political party and its legislative wing, a principle emphasised by the Constitution bench in its May 2023 judgment in the Shiv Sena dispute.

“The control of the political party subsists over the legislature party. Any valid decision of the political party has to prevail over the will even of the majority of the legislature party,” it observed.

Sibal agreed, submitting that allowing legislators alone to determine the identity of a political party would undermine representative democracy.

“If legislators can switch sides, form another government and thereafter claim to be the original political party, the electoral verdict itself becomes meaningless,” he argued, adding that the present trend of defections posed serious consequences for parliamentary democracy.

The bench, however, noted that representative democracy also required some space for elected representatives to take political decisions.

“We have to understand representative participation in a parliamentary democracy. At the same time, we must give elected representatives some elbow room to take political decisions without losing their identity,” it observed while referring to situations involving pre-poll and post-poll alliances.

At another stage, the court remarked that the stability of political parties ultimately depended upon the maturity of democratic institutions.

“The consistency of a political party depends upon the maturity of democracy,” said the bench, drawing a comparison with the United Kingdom where, despite frequent changes in prime ministers, the principal political parties had not witnessed splits.

The dispute has its origins in the 2022 rebellion led by Shinde, when a majority of Shiv Sena MLAs broke away from the Uddhav Thackeray-led faction, resulting in the fall of the Maha Vikas Aghadi government. While disqualification proceedings under the Tenth Schedule remain pending, the Election Commission recognised the Shinde faction as the original Shiv Sena in February 2023 after applying the “test of majority” in the legislature.

Thackeray has challenged that decision before the Supreme Court, contending that the Commission ignored the party’s organisational structure and constitution while placing decisive reliance on legislative numbers. The hearing will continue on Thursday.