India

NEW DELHI : While the Election Commission is yet to take a call on whether the split in Nationalist Congress Party (NCP) warrants proceedings under Symbols Order to recognise one rival faction as the ‘real’ NCP which would be entitled to the reserved ‘alarm clock’ symbol, the tests laid down in the 1971 Supreme Court judgement in the Sadiq Ali case are likely to be applied once again to adjudicate the dispute.Former chief election commissioners O P Rawat and Sunil Arora, when contacted by TOI, concurred that Sadiq Ali verdict remains the template for deciding all matters under Paragraph 15 of the Symbols Order.“The Sadiq Ali judgement has been the ‘lighthouse’ for successive election commissions,” underlined former CEC Sunil Arora.The 1971 judgement, which had upheld the order passed by EC in the case relating to split in Congress, allotting the party’s reserved ‘two bullocks with yoke’ symbol to the group led by Jagjivan Ram, lays down three fundamental tests to decide poll symbol disputes.

These are: test of aims and objects of party; test of party constitution; and test of majority.Under the first test, EC determines if either of the split groups deviated from the ‘aims and objects’ of the party, forming the core point of disagreement between them.

Test of party constitution requires EC to confirm if affairs of the party were being conducted as per its constitution and reflect inner party democracy.

The last – test of majority – involves gauging numerical strength of factions in the legislative and organisational set-up of the party.While deciding a faction’s strength in the legislative wing of the party, EC usually goes by the number of MPs, MLAs or MLCs supporting each faction, based on affidavits or signed documents submitted, and total votes polled by them at the last parliamentary or state election.EC also applies the test of majority in the party’s organisational wing, weighing support pledged by party members to each faction.

“SC, in Sadiq Ali order, had held that EC must decide on matters under Para 15 (of Symbols Order) with a certain measure of promptitude, ensuring that the inquiry is not bogged down in a quagmire,” Arora recalled.“While there are three criteria, only the one which gives a clear result beyond doubt, is applied to decide the symbol dispute, while others are dropped,” Rawat said, recalling how EC was sent two truckloads of affidavits of party members while adjudicating the dispute over AIADMK’s ‘two leaves’ symbol.

“Verifying so many affidavits was not possible,” Rawat said, adding that other tests were relied upon.Even in the Shiv Sena dispute verdict pronounced on February 17, EC had found averments under the test of aims and objects, test of party constitution and test of majority in terms of organisational strength, inconclusive.

It finally went only by test of majority in legislature to allot the Sena name and reserved symbol to the faction led by Eknath Shinde.After the rival factions of a party file the requisite documentation such as letters or affidavits of support from MLAs/MPs/MLCs and resolutions electing their respective leaders as “party chief” with details of expulsions and counter-expulsion, EC first determines if the matter warrants proceedings under Para 15 of the Symbols Order.

The documents submitted by each side are shared to help them frame their future arguments.If a poll or bypoll is imminent, to ensure a level playing field, EC may freeze the reserved symbol and ask rival factions to choose a separate party name and symbol until settlement of the row.

EC then starts hearings in a quasi-judicial capacity.

In its final order, the poll panel declares as to which faction it recognises as the real party, eligible for use of the reserved symbol.





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