Amid TMC split, a Maharashtra parallel: How Shiv Sena, NCP revolts played out

Declaring the support of 20 or two-thirds of the Trinamool Congress (TMC)’s 28 Lok Sabha members, the rebel party MPs met Lok Sabha Speaker Om Birla Sunday to convey to him that they have merged with the Nationalist Citizens Party of India (NCPI), a little-known outfit, and want to be recognised as a separate bloc in the House.

This came moments after the Mamata Banerjee-led TMC submitted a letter to Speaker Birla, urging him not to accord “any recognition, status, or facility to any purported separate group or faction” of the original party.

Earlier, Mamata also seemed to have lost control of the TMC Legislature Party in Bengal after about 60 or three-fourths of its 80 MLAs revolted against the party leadership and elected Ritabrata Banerjee as their leader, who was later recognised as Leader of the Opposition by the Assembly Speaker Rathindra Bose.

The turmoil in the TMC mirrors the upheaval in Maharashtra politics that saw splits in the Shiv Sena and the Nationalist Congress Party (NCP) a few years ago.

In both Maharashtra cases, the disputes simultaneously reached three constitutional institutions – the Election Commission (EC) over party name and election symbol, the Speaker over disqualification proceedings, and the Supreme Court, where some matters still remain pending. All these institutions were required to separately examine competing claims by rival factions over the original party, legitimacy and their majority.

EC role

Once the dispute lands at the EC’s door, in the form of rival factions staking claims to the election symbol, the poll body can register a case and start proceedings under the Election Symbols (Reservation and Allotment) Order, 1968. It is under this order that the EC allots symbols to parties.

Paragraph 15 of the Symbols Order covers the “power of Commission in relation to splinter groups or rival sections of a recognised political party”. It states: “When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.”

To determine which faction is truly the party, the EC has relied on the test of majority in the organisational and legislative wings of parties in the past, including splits in the Congress, Shiv Sena and NCP.

The EC’s decision in the split in the Congress in 1969 when it recognised the faction led by Jagjivan Ram as the real Congress was challenged in the Supreme Court. In its judgment in 1971 in the case, Sadiq Ali and others vs the EC, the court upheld the Commission’s power and decision.

Sena split

In June 2022, senior Shiv Sena leader Eknath Shinde led a rebellion against the then undivided Sena chief and Maharashtra chief minister Uddhav Thackeray, and switched to the BJP-led NDA fold. This led to the collapse of the Uddhav-led Maha Vikas Aghadi (MVA) government, with Shinde taking over as the CM of the Mahayuti government in alliance with the BJP.

The Shinde faction then moved the EC to seek recognition as the “real Shiv Sena”, even as rival factions filed 34 disqualification petitions before Assembly Speaker Rahul Narwekar under the Tenth Schedule of the Constitution or the anti-defection law.

On February 17, 2023, the EC recognised the Shinde faction as the real Sena and allowed it to retain the party’s election symbol, “bow and arrow”.

The Commission exercised powers under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order.

Relying on the apex court’s verdict in the Sadiq Ali matter, the EC applied three tests. First came the aims and objectives of the party constitution, which the Commission found inconclusive. Second was the party constitution.

The Uddhav faction banked on the Sena’s 2018 amended constitution, under which the Paksha Pramukh post held by him had become the “highest authority” in the party. But the EC held that the amended constitution was not on its record. It also said the 2018 amendments effectively reversed democratic safeguards laid down in the Sena’s 1999 constitution and had made the organisation “akin to a fiefdom”.

Since it could not determine the organisational majority conclusively, the EC moved to the third test — a legislative majority. Here, the Shinde faction had support of 40 out of 55 Sena MLAs and 13 of 18 Lok Sabha MPs.

The EC also examined vote shares. It recorded that 40 MLAs backing Shinde had secured 36,57,327 votes, or about 76%, of 47,82,440 votes polled by Sena’s 55 winning MLAs in the 2019 Maharashtra elections.

Similarly, 13 MPs backing Shinde had secured 74,88,634 votes, or about 73%, of 1,02,45,143 votes polled by Sena’s 18 winning MPs in the 2019 Lok Sabha polls.

The EC held that this reflected “qualitative superiority” in favour of the Shinde faction.

NCP split

One year later, in July 2023, Ajit Pawar raised a banner of revolt against NCP founder Sharad Pawar and crossed over to the Mahayuti camp, which appointed him the Deputy CM.

Subsequently, both NCP factions approached the EC to stake their conflicting claims over the original party.

On February 6, 2024, the EC recognised the Ajit faction as the real NCP, giving it the party’s symbol, “clock”. Like in the Sena dispute, the EC applied the same three tests.

The total legislative strength of the undivided NCP had then stood at 81, including MPs, MLAs and MLCs. The EC found that 57 legislators filed affidavits supporting Ajit while 28 backed Sharad Pawar. Five MLAs and one Lok Sabha MP had filed affidavits supporting both factions.

The EC concluded that the Ajit camp retained the majority support with 51 of 81 legislators. The poll body noted that it had to rely on the test of majority in the legislative party and reject the test of majority in the organisational wing as the NCP’s internal elections seemed to have been “without any foundational basis”.

Like in the Sena case, the legislative strength thus became a decisive factor in the NCP dispute too.

Speaker’s rulings

Speaker Narwekar delivered his ruling in the Sena case on January 10, 2024. holding that no MLA from either faction would be disqualified. He held that since the Sena’s 2018 constitution was not on the EC’s record, the only valid constitution available was its 1999 document.

He then examined three factors – party constitution, leadership structure and legislative majority.

Stating that the 2018 leadership structure relied upon by the Uddhav faction was not in conformity with the 1999 constitution, the Speaker ruled that the legislative majority was a decisive factor. He found that when rival factions emerged on June 21, 2022, 37 of 55 party MLAs backed Shinde. He thus concluded that the Shinde faction represented the real Sena.

On February 15, 2024, Speaker Narwekar gave a similar order in the NCP case, holding that the Tenth Schedule provisions could not be used as a tool to silence dissent within parties.

Narwekar recognised the Ajit faction as the legitimate NCP, citing its legislative majority, even as he dismissed disqualification petitions against MLAs from both the groups. He ruled that the developments following the June 2023 split amounted to intra-party dissent rather than defection, observing that disagreement with party leadership did not automatically constitute voluntarily giving up membership under the anti-defection law.

Legal tangles, political fallout

In both the Sena and NCP disputes, the EC as well as the Speaker eventually treated the legislative majority as a decisive factor in their rulings in favour of the Shinde and Ajit factions, respectively.

In its May 11, 2023 verdict in the Sena matter, the Supreme Court’s Constitution Bench observed that while deciding disqualification proceedings, a Speaker cannot rely on a “blind appreciation” of numerical strength alone while deciding which faction represents the political party.

The court also held that “political party” and “legislature party” are distinct concepts and cannot be conflated.

The 2003 constitutional amendment to the anti-defection law provides protection from disqualification only in the case of the original party’s merger with another party with the consent of two-third of its legislature party.

The Uddhav faction, while challenging the Speaker’s ruling before the apex court, has argued that by relying heavily on the legislative majority, constitutional authorities effectively revived a “split doctrine” that Parliament had consciously removed two decades earlier.

The Maharashtra rows also established that their political consequences unfolded faster than institutional resolution.

In both the Sena and NCP disputes, power equations changed immediately after internal rebellions and splits. But the legal battles over them continued for months and, in some cases, hang fire even today despite the end of the legislators’ terms.

– With inputs from Damini Nath, New Delhi