Shiv Sena Case | Election Commission's Decision Lacks Logic, Encourages Defection : PDT Achary

The Election Commission of India's decision to recognise Eknath Shinde's group as the official Shiv Sena lacks logic, opined PDT Achary, former Secretary General of Lok Sabha."When we analyse the Election Commission's decision, we feel that there is a lack of logic in it. Also there is a non-adherence to the criteria laid down by the Supreme Court in Sadiq Ali case", Achary said in an interview with Manu Sebastian, Managing Editor of LiveLaw.He criticised the Election Commission's approach of approving Shinde's claim only on the basis of the legislative majority, without considering the organisational strength. He also expressed surprise at the ECI commenting about the lack of internal democracy in the party and refusing to accept the party constitution. By foraying into these issues, the ECI has exceeded its mandate under the Election Symbols (Reservation and Allotment)Order, 1968. ECI's logic of refusing to reckon the organisational strength on the ground that the party lacks internal democracy is unheard of, he said.Edited excerpts from the interview :Allowing the ECI to decide the issue during the pendency of disqualification proceedings was a "little odd".Achary questioned the rationale of allowing the Election Commission of India to decide Shinde's claim when proceedings against anti-defection law were pending against him and his followers.The Supreme Court allowed the ECI to decide the matter, despite the pendency of disqualification proceedings, which according to him "was a little odd". He agreed that there is some logic in the ECI stand that it can decide the issue, as the 10th schedule proceedings will affect only the membership of the legislature and not of the party. However, both the issues are closely interlinked, especially considering the fact that the ECI's decision was ultimately based on which faction had majority in the legislature."The 10 the schedule is a part of the Constitution, so anti-defection law is a constitutional law, whereas the decision by the Election Commission under Paragraph 15 of the Election Symbols order is a decision under a subordinate legislation. So between these two, naturally the Constitution should have got precedence, because that is the Constitutional law and then that should have been decided urgently, because it concerned the survival of the government and the entire political activities which are happening in the assembly. So according to me, the Constitutional law has precedence. So that should have been decided in point of time as first issue", he said.Election Commission has departed from criteria laid down in Supreme Court's decision, its findings of inner party democracy unheard ofAchary pointed out that one of the criteria laid down in the Sadiq Ali case was the test of majority, which involves the majority in both the legislature and organisational wings of the party. In the case of split in the Congress party during the times of Indira Gandhi, both the legislative strength and the organisational strength were taken into account. However, in the present case, the ECI has considered only the legislative majority."Here, the Election Commission has departed from that for no reason. The reason that has been given is not very acceptable, it's not very logical. They say that there was no democracy in that party and since there is no internal democracy in that party and therefore we cannot give any credence to the number which they have put up. Well, this is a very curious argument which I have never heard from the election commission", he said.ECI exceeded its mandate by making findings on party democracyHe explained that a party, while seeking registration under Section 29 of the Representation of People Act , has to give an affidavit that they subscribe to the ideals of democracy, secularism and socialism. After that, whenever they hold the elections, they have to intimate the Election Commission about the change in the office barriers. "Election Commission cannot decide the democratic character of a particular political party. I don't think the Symbol Order gives this power to the Election Commission. Election Commission has a tendency to invoke Article 324 whenever they use such powers. Article 324 does not give them all the powers on Earth to decide any issue. In Mohinder Singh's case, Justice Krishna Iyer had very clearly said, yes you can certainly use powers which are which are not there in the statute law if certain powers are required to conduct free and fair elections. But if there is a statute law dealing with that issue, then you have to go by the statute. So Election Commission needs to go by the Symbols Order. They cannot invoke Article 324 and decide that they have all the powers to decide any matter in any way. That is not how it is. They also are bound by the statute. Therefore, it is not correct to say that the election commission can decide for itself and for others the structure of political parties. Each political party has...

Shiv Sena Case | Election Commission's Decision Lacks Logic, Encourages Defection : PDT Achary

Manu Sebastian

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