Election Commission NCP

Election Commission of India: In a matter concerning split in the Nationalist Congress Party (‘NCP’), a recognized State Party in Maharashtra and Nagaland with ‘Clock’ symbol registered under Section 29-A of Representation of People Act, 1951 since 5-07-1999, Rajiv Kumar, Chief Election Commissioner, with Anup Chandra Pandey and Arun Goel, Election Commissioners, conferred Ajit Anantrao Pawar faction with the entitlement to enjoy the NCP Party symbol.

On 1-07-2023, a petition was filed before the Commission by Ajit Anantrao Pawar under Paragraph 15 of Election Symbols (Reservation and Allotment) Order 1968 to state that Sharad Pawar, claiming to be the NCP’s National President was running the Party in complete disregard of Party Constitution and its Rules.

The Commission took them as two rival groups in NCP, one led by Sharad Pawar and the other by Ajit Anantrao Pawar, with each group claiming to be the party and stated that the matter required substantive determination under Paragraph 15 of Symbols Order.

Approving maintainability of the petition, the Commission referred to Subhash Desai v. Governor of Maharashtra, 2023 SCC OnLine SC 607 regarding inter-play of jurisdiction between Election Commission’s jurisdiction under Symbols Order and that of Speaker under 10th Schedule of Constitution of India and pointed towards the settled position of law that ‘pendency of a disqualification proceeding against a legislator does not bar such person from instituting a petition under Paragraph 15 of Symbols Order’. It further expressed that Paragraph 15 grants wider latitude for the Commission to decide on rival factions in a political party, and highlighted comments from both the parties to satisfy the requirements of principles of natural justice.

Regarding allegations that the Commission recognized a split in the party vide order dated 14-09-2023 without providing any reasoning or an opportunity for Sharad Pawar to reply, it was explained that no appeal was filed against the said order, which attained finality regarding existence of dispute in NCP.

On the question of NCP faction, the Commission pointed towards the elections of both Ajit Pawar and Sharad Pawar for NCP Presidents and organizational elections held in 2022 and referred to Swami Chakrapani v. Election Commission of India, 2021 SCC OnLine Del 4432 upheld by the Supreme Court along with other cases to reflect upon the Courts’ view that “the Commission has no role to regulate the internal functioning of a political party”. Thus, it was concluded that the Commission could not examine the validity of organizational election in proceedings under Paragraph 15 of Symbols Order.

The Commission further pointed towards the documents/submissions to express that the support in NCP had clearly split into two rival groups rallying behind the two leaders, while both claim to be the party leaders. It further commented that “When two top leaders of the Party are at the loggerheads and are before the Commission in a dispute under Paragraph 15 of the Symbols Order to deny that there is no dispute and discarding such a fact will amount to turning blind eye to the existing realities.”

Regarding the test to be applied for symbol dispute case, the Commission referred to Sadiq Ali v. Election Commission of India, (1972) 4 SCC 664 and denied its applicability since neither of the two factions made substantial claim of following said aims and objects against the other. On test of Party Constitution, the Commission expressed that the test had been of little help in previous disputes. Coming towards the Test of Majority, the Commission again pointed at the Supreme Court’s observations in Sadiq Ali (supra) its own observations in Samajwadi Party Dispute, Himachal Vikas Congress Dispute to support relevance of the said test in the instant matter. The Test of Majority involves “assessing the support enjoyed by each of the faction in the organizational as well as the legislative wings of the Party.”

It was observed by the Commission for Sharad Pawar that “Though the Respondent claimed that he enjoyed a majority in various organizational bodies of NCP, nothing was brought on record to show as to when the elections of the Block Committees, State Committees, National Committees were actually held. Mere communication of the election of the National President, which itself is fraught with multiple dates of election as discussed in preceding paragraphs, and submitting affidavits of support of persons of organizational wing without removing the doubts over their very credentials would not yield a reliable determination.” The Commission also highlighted the gaps noted on behalf of Sharad Pawar in the elections of Ajit Pawar as party president.

Emphasizing upon the need for democratic running of political parties as per Party Constitution, the Commission held that the Party Constitution was not merely a piece of paper to be submitted for registration under Section 29A of RP Act. The Commission tagged it as a “vehicle which drives the organization”, “breathes democracy into the organization” and “ensures that the democratic governance which runs through the country is also reflected in the political parties”.

The Commission rejected the application of majority test in organizational wing of the Party but went with the legislative wing to hold the group led by Ajit Anantrao Pawar as the NCP, being entitled to use its name and ‘clock’ symbol for the purpose of Election Symbols (Reservation and Allotment) Order, 1968.

Before concluding, the Commission raised concerns that “A majority of symbol disputes cases which come before the Commission under Paragraph 15 of the Symbols Order show that political parties are either not holding regular organizational elections, or not holding them as per Party Constitution, or have amended their Constitution in such a manner that ‘elections’ have turned into ‘appointments’. Such actions on the part of Party Constitution in adjudicating the dispute cases but also renders ineffective the application of test of majority in the organizational wing of the Party.”

It further gave Sharad Pawar faction a onetime option for the upcoming Rajya Sabha Elections in Maharashtra, to claim a new name for new political formation as per Paragraph 18 of Symbols Order.

[In Re: Dispute relating to Nationalist Congress Party under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968]

Advocates who appeared in this case :

For Petitioners: Senior Advocate Mukul Rohatgi, Senior Advocate Neeraj Kishan Kaul, Senior Advocate Maninder Singh, Senior Advocate Siddharth Bhatnagar, Advocate Abhikalp Pratap Singh, Advocate Shrirang Varma, Advocate Yamini Singh, Advocate Aditya Krishna, Advocate Raavi Sharma, Advocate Kartikey, Advocate Pracheta Kar, Advocate Devanshi Singh, Advocate Bharat Bagla

For Respondents: Senior Advocate Abhishek Manu Singhvi, Senior Advocate Devadatt Kamat, Advocate Amit Bhandari, Advocate Pranjal Agarwal, Advocate Muhammad Ali Khan, Advocate Harsh Pandey, Advocate Anubhav Kumar, Advocate Omar Hoda, Advocate Eesha Bakshi, Advocate Uday Bhatia

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