Shiv Sena Row: SC Asks If Legislative Majority Test Is Safe When MLAs Face Disqualification

THE MAJORITY THAT IS ALSO ON TRIAL

Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 lets the Election Commission decide which faction owns a split party's symbol, using a "test of majority" across the legislative and organisational wings.

The Tenth Schedule separately lets a Speaker disqualify legislators for defection. The Shiv Sena case now before the Supreme Court exposes what happens when both processes examine the exact same set of MLAs at the exact same time - and reach for the exact same number.

The Circularity the Bench Is Pointing At

The text of Paragraph 15 does not ask where a legislator's majority came from - only how many there are. But the Tenth Schedule exists precisely to ask that question: was this legislator's current political position obtained through defection?

When the Election Commission used the Shinde faction's legislative headcount to decide it was the "real" Shiv Sena, it counted MLAs whose right to hold that legislative seat at all was - and still is - under challenge before the Speaker and now the Supreme Court.

The Court's question to senior counsel Kaul cuts straight at this: if disqualification succeeds later, the "majority" that decided the symbol dispute would retroactively include votes that were never legitimately theirs to cast.

In Practice This is not a

hypothetical concern the bench invented - it is exactly the scenario the 2023 Subhash Desai Constitution Bench judgment tried to pre-empt, ruling that the ECI cannot rely solely on legislative majority when disqualification petitions are live against those same legislators.

Kaul's defence is that the organisational wing test was genuinely "unworkable" here - the party's structure, by his own description, ran through appointed rather than elected office-bearers - leaving legislative majority as the only test the ECI could apply at all.

Justice Bagchi's counter-suggestion is sharper still: if every available test is compromised, perhaps neither faction deserves the original symbol at all and both should contest under new symbols earned on their own strength.

Why This Matters Beyond Shiv Sena

The unresolved tension here is structural, not one-off. Any future party split where MLAs face parallel disqualification proceedings will run into the identical circularity: use the tainted majority to decide legitimacy or wait for disqualification to resolve first and risk paralysing the party during that time.

Until the Court draws a clearer line - sequencing the two proceedings or barring legislative-majority reliance outright when disqualification is pending - every symbol dispute involving a defection-triggered split inherits this same unresolved question.