Finally, the Election Commission let neither faction of the Shiv Sena retain its original bow-and-arrow symbol. The Shiv Sena faction led by Maharashtra Chief Minister Eknath Shinde has received the 'two swords and shield' as the symbol for the upcoming by-election in Andheri (East), the Election Commission said today. The commission has already allotted the name "Balasahebanchi ShivSena" for his group. In its letter, the commission said the "Dhal Talwar" suggested by the Shinde faction was not on the list of free symbols.

"It resembles an erstwhile reserved symbol 'Do Talwaren aur Ek Dhal (Two Swords & Shield)' of 'People's Democratic Movement' which was derecognized as a state party in 2004… On receipt of your request dated 11.10.2022, the commission has decided to declare 'Do Talwaren aur Ek Dhal (Two Swords & Shield)' to be a free symbol and allots it… till the final order is passed in the Dispute," read the notification from the Election Commission.

Yesterday, the Election Commission had declined to allot any of the trishul, rising sun and gada symbols to either of the factions as they are “not in the list of free symbols”, and asked to submit the Shinde camp three fresh symbols by today. The Shinde faction had earlier suggested the rising sun and trident as their poll symbols along with a mace (gada).

On 8 October, the Election Commission had debarred both Shiv Sena factions from using the party name and its election symbol in the November 3 Andheri East assembly by-election. In an interim order over the claims by the rival factions for control of the organisation, the Commission asked them to suggest by Monday three different name choices and as many free symbols for allocation to their respective groups.

The Sena vs Sena row began when Shinde raised a banner of revolt against Uddhav in June, accusing him of entering into an “unnatural alliance” with the INC and NCP by compromising on Bal Thackeray’s ideologies. More than 40 of the Shiv Sena’s 55 MLAs had supported Shinde, forcing Uddhav’s resignation.

The Andheri East by-poll is the first to happen after Shinde and the BJP unseated the MVA government.

Why EC is right in denying either Shiv Sena faction the bow-and-arrow symbol

The Election Commission is within its rights to freeze the bow-and-arrow symbol of the Shiv Sena, which both the mutually rival factions claimed after the party split until it decides which faction constitutes the real Shiv Sena. There are precedents of similar decisions as well as the recent Supreme Court ruling that the commission is the proper authority to adjudicate on such matters. 

The apex court was responding to a petition that the Uddhav Thackeray faction had filed while continuing to hear the case of disqualification of legislators aligned with the Eknath Shinde Sena faction.

The Election Commission decision is in the spotlight also because the freezing of the symbol will have a bearing on the aforementioned 3 November by-election to the Maharashtra assembly. It is a prestige battle for the Thackeray faction, which has fielded the wife of the late Sena MLA as its candidate whereas the Shinde faction is backing the BJP nominee.

The Thackeray faction candidate had to contest on a new symbol (and a new name though it could be linked to the parent party), which makes Uddhav's task tougher and so the Thackeray faction questioned the commission's decision. However, the criticism is misplaced even though the Thackeray faction has made a political point that, in the by-election, the Shinde faction is acting as a proxy for the BJP; that’s not a technical point. 

Section 15 of the Election Symbols (Reservation and Allotment) Order, 1968, gives a mandate to the commission to decide which faction constitutes the recognised party in the event of rival groups making a claim for the mother organisation, its name, flag and symbol. The commission's decision is binding on all the parties. 

In several verdicts, the apex court has upheld the commission’s authority on the matter and the test of majority principle it follows to arrive at a decision. The verification of the rival factions' claims is often a protracted process that may take months. For example, the Shiv Sena factions have made competing claims about the number of legislators, members in the party’s national executive, state chiefs, primary members (which run into lakhs), office bearers in the organisation etc supporting them. So, if a by-election is scheduled before the resolution of the dispute, the commission may have no choice but to freeze the symbol — in order to ensure a level-playing field.

In 2017, the commission had frozen the two-leaves symbol of AIADMK when rival factions sought it ahead of a by-poll in Tamil Nadu. This precedent was followed last October when a dispute arose over the custodianship of LJP in Bihar.

However, considering the stakes in the battle, the commission’s actions are likely to come under close scrutiny. Its hard-won reputation of being a fair and independent institution becomes extremely relevant. 

In the competitive politics of states as also the country, especially when parties are vulnerable to defections and splits, the way the commission interprets the law and convention on such matters will impact not only the immediate Sena case but also public trust in institutions — and the very democratic process.