Sushil Chandra, who was the CEC between April 2021 and May 2022, said in such matters, the poll panel has always followed the Sadiq Ali Supreme Court case. He also observed that the top court has held that the EC is the sole authority in deciding such matters.

S Y Qureshi, who was the CEC between July 2010 and June 2012, said the EC order was on “expected lines”. He said the number of MPs and MLAs (the legislative wing of the party) have been the deciding factor “always”. He recalled that the apex court in its judgment in 1971 had said that intra-party feuds are not property disputes where a family is contesting it and the property is divided. “It is winner takes all… if one faction is the party (or the real party in common parlance), there is no question on the division of the party,” Qureshi said.

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‘Order not sound’

But Constitution expert and former Lok Sabha secretary general P D T Achari felt that the EC order was “flawed” as it overlooked the strength of the organisational wing of the party supporting Thackeray.

The test adopted by the EC was to look into the strengths of the organisational and legislative wings of the party. The principle was upheld by the Supreme Court in the Sadiq Ali case, he said. “The EC has taken only the legislative wing as the basis to conclude that Shinde faction is the party,” Achari said. He added that as per the criteria laid down and upheld by the SC, the EC order is not “very sound”.

He noted that the poll panel has given a reason for not looking at the organisation. The EC, according to him, said the party constitution’s functioning was not very democratic, and all powers were concentrated in the hands of the “top man” (Thackeray). He said the EC “cannot go beyond their remit and EC cannot decide what party structure should be adopted and followed by political parties. They have the freedom to structure their party as they like,” he said.

He said, “It is not the constitutional function of the EC to find out whether the president has more powers or the general secretary has more powers ... and take a position on that ...That is the flaw in this judgment. It is incomplete, and the test which the EC has applied is confined to the strength of the legislative wing of the party … this decision is flawed.”

In its order, the poll watchdog detailed why it was forced to ignore the claims of the rival factions over the organisational wing of the party, contending that the amendments to the Shiv Sena constitution in 2018, after the death of founder Balasaheb Thackeray, were undemocratic and paved the way to appoint people from a coterie as office bearers without any election at all.

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