In 2019 Maharashtra Assembly elections, the BJP emerged with 106 MLAs, the Shiv Sena with 56, the NCP with 53 and the Congress with 44. The majority mark of 145 had been achieved by the BJP-- Sena alliance. However, at the last minute, the Sena joined hand with NCP and Congress to form the government. This was seen by many as a political and ideological betrayal. Political, because the Sena had agreed to a seat sharing arrangement with the BJP, whereby the latter did not contest from the former’s seats. Ideological because the far-right Sena had dumped its right wing compatriot for left wing competitors.

While Uddhav Thackeray did capture Jerusalem, his crusade turned a good chunk of his generals skeptical. Ultimately, the 39 “rebels” MLAs led by Eknath Shinde broke away. The Thackeray group petitioned the Deputy speaker to disqualify 16 of the 39 for having defected, and the Shinde group, petitioned the Supreme Court for greater time to respond to the disqualification notices. The Supreme Court refused to stay the floor test. Subsequently, the Shinde Sena resumed its alliance with the BJP, with Shinde becoming the chief minister and the BJP’s Rahul Narwekar the new speaker.

Despite possessing more than two third of Sena MLAs, the Group would invite disqualification for defection under 10th schedule unless it merged with another party. However, there has been no merger so far. In such circumstances it, would become inoperative for the Shinde group to establish itself as the Shiv Sena so that its 39 MLAs would have to neither voluntarily give up party membership under 10th schedule, nor would they have flouted the Uddhav Thackeray control party whip to merit disqualification.

The Samyukta Socialist party case (1967) was the first big case of a political split before EC. The SSP was formed as a result of the merger of the Praja Socialist Party (PSP) and the Socialist Party in 1964. But the two parted ways a year later. It was easy to identify that the PSP had existed as a block and the remainder of the SSP was nothing but Socialist Party. The case led to the election symbol (Reservation and allotment) order 1968, notably para 15 which conferred upon the EC the power to determine which of the rival groups could lay claims to being the original party.

In the Sadik Ali case (1972), the Supreme Court was tasked with determination which of the rival groups — Congress (O) or Congress-J — would be the Indian National Congress. It was held the mandate within a political party would be democratic, wherein the group’s majority in legislatures as well as in the organizational structure would be relevant. This is known as the Test of Majority. It was also held that the group should have greater proximity to the ideological objectives of the political party –the Test of Aims and Objectives.

It was found that the overall majority in various legislatures as well as in the Organization structure was commanded by the Congress-J. The party was, accordingly — declared as INC. A year later, Ramashankar Kaushik case allowed S C to elucidate the Test of Majority. The court held that the Ramashankar faction was not the Socialist Party, as there was no continuity between the constitution, office bearers and membership of this group and the Socialist party.

While the Shinde group commands a majority among SS legislators in the Maharashtra Assembly, the legislative majority as per the Sadik Ali case would be determined on an overall basis, across all legislatures and corporations. The Thackeray group may yet wield organizational majority across the party cadre, especially at the municipal level. Curiously, in Thackeray-Shinde, feud the Test of majority may prove inconclusive with the legislative majority falling to one group and the organizational majority falling to other. Such a quandary is unprecedented. Though organizational majority is better indicator of association with the original party, the EC is likely to weigh in favour of the legislative majority, given that the recognition of political parties under the 1968 order is on the basis of their electoral performance. (IPA Service)