Mumbai: The Supreme Court on Tuesday questioned the Election Commission of India's (ECI) rationale in giving recognition to the Ajit Pawar's NCP faction solely based on the test of legislative majority. The court expressed concern that this approach could encourage defections.
A bench comprising Justices Surya Kant and KV Viswanathan was hearing the Special Leave Petition filed by the Sharad Pawar group challenging the February 6 decision of the ECI.
The bench said that when the Election Symbols (Reservation and Allotment) Order was enacted in 1968, the 10th Schedule was not in place. Even the Sadiq Ali judgment (1972), which laid down the parameters for deciding the real party in cases of split, was delivered before the enactment of the 10th Schedule. It was only after the 52nd Constitutional Amendment of 1985 that the anti-defection law or the 10th Schedule was inserted in the Constitution. Though the 10th Schedule initially recognised both 'split within a party' and 'merger with another party' as valid grounds of defence, later, the defence of 'split' was omitted.
Justice Viswanathan asked whether by applying the legislative majority test, the ECI had validated a defection by way of a 'split' that no longer existed as a defence under the 10th Schedule.
"In that scenario, when the order [of the Election Commission] is not based on organisational strength, based only on legislative strength, is it not recognising a split, which is no longer approved under the 10th Schedule do not go by the legislative test then, go by the organisational test. And if you cannot, then what is the solution? It is a real worry because otherwise you can engineer defections and then come and get the recognition of the party symbol. It is a mockery of the voter," Justice Viswanathan said.
Recently, a bench led by Chief Justice DY Chandrachud had also expressed concerns about the use of legislative majority as a test to determine which faction is the real party. On March 7, while hearing a petition filed by the Shiv Sena (UBT) against the speaker's refusal to disqualify the MLAs of the Eknath Shinde group under the 10th Schedule, the CJI had orally observed that the speaker's reliance on the test of legislative majority was contrary to the Supreme Court's judgment in Subhash Desai (2023).
The Supreme Court in Subhash Desai (Shiv Sena dispute) had held that the legislative majority was not an appropriate test to determine the real party when two rival factions had emerged after a split.
During Tuesday's hearing, Senior Advocate Abhishek Manu Singhvi, appearing for Sharad Pawar, placed reliance on the Subhash Desai judgment to question the ECIs decision. The ECI's decision was based on the criterion of 'legislative majority,' with the Ajit Pawar faction possessing 51 out of 81 legislators.
