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The EC decision on AIADMK has a bearing on the Tenth Schedule to the Constitution

On Thursday, the three-member Election Commission unanimously decided that ruling faction of the All India Anna Dravida Munnetra Kazhagam (AIADMK) is the true inheritor of the party’s name and symbol, Two Leaves.  The E. C. rejected the claims of the rival faction led by V. K. Sasikala, on the ground that it had less numerical support in the organisational and legislative wings of the party.

The petition was initially filed by a numerically smaller faction in March this year, when the Commission, through an interim order, had frozen both the party’s name and symbol.   Subsequently, however, the ruling faction further split, with the majority group merging with the erstwhile rebels, thus reducing Sasikala’s faction to minority.   Thus when the Commission finally decided the matter, the petitioners found themselves in majority in both the organisational and legislative wings, and the Commission took due note of it as a relevant factor.

Thanks to the E. C.’s decision, the numerical support of the rival factions is now settled. The official faction, which is now in power, has 34 Members of Lok Sabha, eight Members of Rajya Sabha, and 111 MLAs in its support.  The rival group has only  three Lok Sabha, three Rajya Sabha and 20 MLAs, of whom, the E. C. has confirmed, 18 stand disqualified under the Tenth Schedule to the Constitution.

To test the support of the rival factions in the party organisation, the E. C. relied on the support claimed by them in the party’s 2128-strong General Council.   Of the 2128, the E. C. found that 1741 had validly filed affidavits in support of the petitioner faction in September 2017, whereas only 145 affidavits were defect-free in support of the respondent group.

Although the test adopted by the Commission may be the pragmatic one, considering the precedents,  questions will doubtless be asked whether the fluid nature of numerical support of the rival factions within the organisation and the legislature could determine the allotment of symbol, which was used by the united party in all the successive elections.

The AIADMK has millions of primary members in all villages and towns in Tamil Nadu, apart from members in some adjoining States.  The Commission cannot be expected to hold a referendum among the primary members of the party, and verify the individual claims of persons claiming to be primary members, in order to ascertain the relative support of the two rival groups among those primary members, the E. C. held. Relying on the party constitution, the E. C. considered the General Council of the party as the body fairly representative of the views of the primary members forming rank and file of the party, as contemplated in the decision of the Supreme Court in Sadiq Ali’s case.

The E. C. rejected the plea to adopt the party constitution test, as opposed to the numerical majority test.  The plea was advanced by the senior counsel, Abhishek Singhvi, on behalf of the Sasikala faction.   It is obvious that had the petitioners been in the numerically less faction, they would have advanced the similar contention. Relying simply on the precedents in Sadiq Ali and Arjun Singh cases, the E. C. rejected the contention, on the ground that the party constitution test would have proved irrelevant when the rival factions ostensibly claim that they are the true followers of the party’s constitution.

This brings the question whether a stronger faction with proximity to power could easily tilt the scales, by mobilising support in the party’s legislative and organisational wings. Indeed, this is what happened in the AIADMK, with support shifting from one group to another, keeping in view which is in power.  Much water has flown after the Sadiq Ali and Arjun Singh cases with the misuse of the Tenth Schedule to the Constitution, to settle leadership questions within the party, influencing the decisions on party symbols as well.

The Tenth Schedule to the Constitution, dealing with disqualification on the ground of defection, exempts a member of a House from disqualification where his “original political party” merges with another political party, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

Thursday’s decision of the E. C. would seem to pose a relevant question, whether the General Council of a political party could be considered as the “original political party”, to determine the party’s organisational strength, and its position on any issue, including mergers.

Assessing the strength of the rival factions in the party’s General Council through the affidavits of the members does not appear to be the satisfactory solution to the question of which faction deserves the party’s name and symbol. For an institution like the E. C., which has repeatedly demonstrated its ability to organise a national election at a short notice, its reluctance to hold a referendum among the crores of primary members of the party, to determine the allotment of the symbol, is amazing. Clearly, if the proposal which it considered has its merits, the party itself could have been asked to foot the bill for holding the referendum.

 

Read the Order of the Election Commission below:

 

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