Split in legislature party does not amount to split in political party, Shiv Sena (UBT) tells Supreme Court

This case brings to the forefront the distinction between a legislature party (elected MLAs/MPs) and the original political party (the organisational structure and membership). The argument presented to the Supreme Court revolves around the interpretation of the Tenth Schedule of the Constitution, specifically concerning defection and splits. Previously, under the Tenth Schedule, a split required one-third of the legislators to form a separate group after a split in the original political party. The 91st Amendment Act, 2003 omitted the provision regarding a split in the party (Paragraph 3) to tighten anti-defection laws. However, the core argument remains that actions by legislators alone cannot define the identity of the political party as a whole. The Supreme Court's interpretation of this distinction will be crucial for understanding how internal party disputes and splits are legally addressed, especially concerning the allocation of party symbols by the Election Commission of India.

The role and powers of the Election Commission of India (ECI) are a central theme here. The ECI uses the Election Symbols (Reservation and Allotment) Order, 1968 to resolve disputes when a recognized political party splits. Paragraph 15 of this order grants the ECI the power to decide which faction is the recognized political party, a decision that is binding. The ECI typically evaluates the test of majority in the legislative and organisational wings, testing the aims and objects of the party, and testing the party constitution. The contention is that the ECI overly relied on the legislative majority (which the Shinde faction held) while ignoring the organisational strength or the party's internal constitution, which the Thackeray faction argues is unlawful. This raises questions about the criteria the ECI should use and whether it has the authority under Section 29A of the Representation of the People Act, 1951 to judge the democratic nature of a registered party's internal constitution.

The arguments also touch upon fundamental rights, specifically the right to form associations under Article 19(1)(c) of the Constitution. The Thackeray faction argues that a political party is a voluntary association entitled to function according to its own rules (its constitution). The ECI's dismissal of the Shiv Sena's 2018 constitution as 'undemocratic' is challenged on the grounds that Section 29A of the Representation of the People Act, 1951 primarily deals with registration and requires allegiance to democratic principles, but doesn't necessarily give the ECI power to continually adjudicate the internal democratic functioning of an already registered party. The observation by the judges regarding constitutional morality and the broad exceptions of 'public order' and 'morality' under Article 19(4) suggests a potential debate on balancing the internal autonomy of political parties with overarching constitutional principles.