The analysation of the situation is required as the judgement has not been done by adhering to facts.
Some of the members from the original Shiv Sena then led by Uddhav Thackeray defected first and not all at once. Initially, 16 members defected and then, one by one, the number reached 24. The split was not really done in a systematic way and it became clear there and then that this was BJP’s plan to claim power. Their move comes within the ambit of anti-defection law but they did not bother about it. In fact, to defend themselves, they started to dramatise the issue and accused Uddhav Thackeray of defection.
Although they claimed the Shiv Sena to be theirs, the whole world witnessed what really happened. A faction led by Eknath Shinde first went to Surat, then moved to Guwahati, Goa and then back to Mumbai, and toppled the Uddhav Thackeray government. Everyone knew that the Thackeray faction is the original Shiv Sena while Shinde group is the defected one, but ECI decided on the contrary. How is it possible that the Shinde faction is the real Shiv Sena while the Uddhav Thackeray-led one is the splinter group? This puts a question mark on the very decision taken by ECI.
The Commission rejected the evidence presented by the Thackeray faction that the party’s workers and officials are on their side, while also rejecting the party’s constitutional amendments done in 2018. ECI also asked as to why these changes were not presented to the Commission at that time itself. Obviously, the Commission also invalidated the appointments done as per the amended party constitution, which also means invalidation of the claimed majority within the party.
The ECI gave its judgement based on the Sadiq Ali case with three criteria used in that case. As per the first criteria, the Commission first checked the objectives of the party’s constitution, where neither factions could present their sides satisfactorily. The second criteria was the party constitution which the party amended in 2018. However, the party did not inform the ECI about the changes and also whatever was presented to the Commission did not have enough details. Since the Commission could not come to a decision based on the first two criteria, they referred to the third one. The third criteria was on the majority in the legislative group, and the decision was taken based on which faction had the majority. Since the Shinde faction has a majority of the members, ECI gave the verdict in its favour.
Surprisingly, ECI did not only count the number of MLAs and MPs in the Shinde faction, but also counted the votes gained by them. However, ECI did not take into consideration that these votes were given to the original Shiv Sena and its symbol. Could the votes be still counted as theirs after they have left the party? There exists no such a system. Did the defected MLAs take the decision of leaving the party after asking their voters? Then, on what basis are the voters still on their side? Which is why ECI should not have thought about considering people’s votes at all.
It would wreak havoc if party related decisions are taken with such an approach. Hence, this decision needs to be challenged. The ECI has acknowledged Shinde’s faction as the real Shiv Sena based on their majority in the Assembly. Citing this judgement as a standard, bulk defections could take place in all the states. In Goa, eight out of 11 members of Congress left the party and formed their own group. They can claim that their faction is the real Congress as they are in majority. Same with the MGP party, where two of the three MLAs left the party during the previous polls. Therefore, solely considering a majority in the Assembly is not the solution.
Importantly, the Sadiq Ali case which ECI relied on for its verdict is from 1971 when neither the 10th Schedule nor the anti-defection law existed. The anti-defection law came into existence in 1985 and was amended during BJP’s first tenure. The provision to approve the defection of 1/3rd of members was removed and only the party merger provision was maintained. All in all, while giving the verdict, the Commission should have considered the current anti-defection law as well.
