Symbol dispute

Also called: Paragraph 15 of the Symbols Order · Topic: Political Parties, Party Systems and Anti-defection · NCERT: Beyond NCERT

Meaning

A symbol dispute is a case where two or more rival groups of a recognised political party each claim to be that party. Under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, the Election Commission of India (ECI) decides which group is the party, or that none of them is. That decision binds all the rival groups [1].

It matters because the winner gets the party's name and its reserved symbol. That symbol is the party's identity on the ballot, and voters link it to the party's history, leaders and loyal support.

Explanation

Where the power comes from

• The Symbols Order, 1968 was issued by the ECI as S.O. 2959 on 31 August 1968 [1].
• Its legal basis is Article 324. This article gives the ECI superintendence, direction and control of elections [1].
• It is read with Section 29A of the Representation of the People Act, 1951, which deals with registering parties [1].

• It also uses Rules 5 and 10 of the Conduct of Elections Rules, 1961 [1].

• It is not a separate Act of Parliament. It is an order made by the ECI.

• The ECI acts as a quasi-judicial body here. It is not a court, but like a court it hears both sides and then decides.

How a para 15 dispute works, step by step

• Step 1: rival claims. Two or more groups of a recognised party each say, "We are the party."
• Step 2: freezing the symbol. While the dispute is pending, the ECI usually freezes the reserved symbol, so neither group can use it [2].
• Step 3: interim names and symbols. Each group gets a temporary name and a temporary symbol for elections held in the meantime [2].
• Step 4: hearing. The ECI looks at all the facts. It hears the groups and anyone else who wants to be heard [1].
• Step 5: decision. The ECI decides that one group, or none of them, is the recognised party [1].
• Step 6: effect. The decision is binding on all the rival groups [1]. The winning group gets the original name and symbol back [2].
• No fixed time limit. The Order sets no deadline. But a long freeze is harmful because voters may stop linking the symbol with the party. So the ECI cannot wait forever [2].

What the ECI actually decides

• The question is which group is the party, not which group represents it. The symbol simply follows from that answer (Sadiq Ali) [2].
• The three tests from Sadiq Ali (1971) [2]:
• Aims and objectives: which group stayed true to the aims written in the party constitution.
• Party constitution: which group followed the party's own rules.

• Majority test: which group has majority support in the organisational wing (party members and office-bearers) and the legislative wing (MPs and MLAs).

• No single test is compulsory. After Subhash Desai (2023), the ECI may use whichever test best suits the facts of the case [2].

Limits and related paragraphs

• Para 15 applies only to recognised parties, meaning National or State parties [1].
• Para 16 (merger): if two or more parties merge, the ECI decides whether the new party is a National or State party and which symbol it gets. The decision binds the new party and all its parts [1].
• Para 5: every symbol is either reserved, kept only for a recognised party's candidates, or free, meaning open to independents and RUPPs [1]. Para 15 disputes are fights over a reserved symbol.

In the Constitution and practice

• Constitutional and legal base: Article 324, read with Section 29A of the RP Act, 1951, and Rules 5 and 10 of the Conduct of Elections Rules, 1961 [1]. The ECI uses the power.
• Sadiq Ali v. ECI (1971)
• The case: after the 1969 split, both Congress groups claimed the name and symbol.
• The ruling: the Supreme Court upheld the ECI's power under para 15 and its decision in favour of Indira Gandhi's group. That group was called "Congress J" in the case, after its president, Jagjivan Ram [2].
• On the majority test: the Court said that in those facts it was "not only germane and relevant but a very valuable test". The INC was a democratic organisation where numbers count, and seats won also decide whether a party is recognised [2].

• Later practice: after 1971 the ECI kept using majority in the legislative and organisational wings [2].

• The 1969 Congress split (background)

• The two sides: the Syndicate (K. Kamaraj, S. Nijalingappa, S.K. Patil, Atulya Ghosh, N. Sanjiva Reddy) against Indira Gandhi.
• The trigger: in the 1969 Presidential election, Indira Gandhi called for a "conscience vote" against the official candidate, Reddy. V.V. Giri, an independent, won.
• The split: Indira Gandhi was expelled in November 1969. The party divided into Congress (O), the Syndicate's group, and Congress (R), Indira's group.
• The political verdict: Congress (R) won 352 seats in the 1971 Lok Sabha election.

• Symbols: Congress (R) fought under the "cow and calf". The "hand" came after another split in 1978.

• Recent disputes

Party	ECI decision	Outcome
Samajwadi Party	January 2017	Name and "cycle" symbol went to Akhilesh Yadav's group
AIADMK	2017	"Two leaves" was frozen first, then given to the merged E. Palaniswami–O. Panneerselvam faction
Shiv Sena	17 February 2023	Name and bow-and-arrow went to Eknath Shinde's faction
NCP	6 February 2024	Name and "clock" symbol went to Ajit Pawar's faction

• The Shiv Sena case in detail
• The petition: Eknath Shinde filed a para 15 petition on 19 July 2022 [2].
• The freeze: in October 2022 the ECI froze the bow-and-arrow before a by-election. The Thackeray group got "Shiv Sena (Uddhav Balasaheb Thackeray)" with a flaming torch. The Shinde group got "Balasahebanchi Shiv Sena".

• The test used: the ECI relied on legislative majority. It could not use the party constitution test because it found the party's 2018 constitution undemocratic.

• Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)

• The bench: a five-judge Constitution Bench headed by CJI D.Y. Chandrachud decided the case on 11 May 2023 [2].
• Both cases can run together. The Speaker can decide disqualification under the Tenth Schedule (the anti-defection law) while the ECI decides the para 15 case. One authority does not have to wait for the other [2].
• There is no fixed test. Neither Sadiq Ali nor the Symbols Order makes legislative majority the only or main test [2].
• The majority test gets weaker when MLAs face disqualification. If the majority group may soon be disqualified, its claim is uncertain [2].
• The Speaker's view is only prima facie. "Prima facie" means a first-look view. The Speaker may decide which faction is the party, but only for the disqualification case. It does not affect the para 15 case [2].
• The Speaker must use the right party constitution. That is the version given to the ECI before the split, which both sides had agreed to [2].
• The political party appoints the whip. The whip is the official who issues the party's voting orders. The political party, not the legislature party (the group of its MLAs), appoints the whip [2].
• Numbers alone are not enough. In the Court's words, "This is not a game of numbers, but of something more" [2].

Don't confuse with

• Para 16 (merger): para 15 settles a fight between rival groups of one party. Para 16 decides the status and symbol of a new party formed when two or more parties join [1].
• Disqualification under the Tenth Schedule: the Speaker decides whether individual MLAs or MPs lose their seats. The ECI decides under para 15 which group is the party and gets the symbol. The two can run at the same time [2].
• "Split" defence (old para 3, Tenth Schedule): the 91st Amendment (2003) deleted it, so a split no longer saves legislators from disqualification [2]. A para 15 "split" dispute is a different thing. It only decides who gets the party's name and symbol.
• Para 16A (suspending or withdrawing recognition): this is a penalty on a party that breaks the Model Code of Conduct or defies the ECI's lawful directions [1]. It has nothing to do with rival groups.

Prelims Hooks

• Source of the Symbols Order, 1968: Article 324, read with Section 29A of the RP Act, 1951 and Rules 5 and 10 of the Conduct of Elections Rules, 1961. It is not an Act of Parliament [1].
• Paragraph matching: para 5 covers reserved and free symbols; para 15 covers splinter or rival groups; para 16 covers mergers; para 16A covers suspending or withdrawing recognition [1].
• Trap: under para 15, the ECI can decide that none of the rival groups is the party. Its decision binds all of them [1].
• Sadiq Ali v. ECI (1971): three tests: aims and objectives, party constitution, and majority in the organisational and legislative wings [2].
• Subhash Desai (2023): the Speaker and the ECI can act concurrently; the ECI may use any suitable test; the political party, not the legislature party, appoints the whip [2].
• Date trap: Shiv Sena went to the Shinde faction on 17 February 2023. NCP went to the Ajit Pawar faction on 6 February 2024.

Mains Points

• The legislative-majority test can reward defection.
• Since 1971, para 15 cases have often become a count of MLAs [2].
• So a group of MLAs who leave can claim the whole party, its name and its symbol. That defeats the purpose of the Tenth Schedule.
• Subhash Desai (2023) said this test is weaker when legislators face disqualification [2].

• Reform idea: give more weight to the party constitution and organisational support, checked against records filed with the ECI before the split [2].

• Two forums can give two answers.

• The Speaker and the ECI can decide at the same time and may disagree about which group is the party [2].
• The Speaker's view is only prima facie, but no rule says which forum comes first [2].

• Proposals: set time limits for the Speaker, or move disqualification cases to a neutral tribunal or to the President or Governor acting on the ECI's advice.

• The root problem is weak internal party democracy.

• The Shiv Sena's undemocratic 2018 constitution left the ECI unable to use the constitution test.
• Long freezes confuse voters and hurt parties [2].
• Fixes: ECI checks on party constitutions and on regular internal elections, backed by law. Because the Symbols Order rests on Article 324 and not on a law passed by Parliament, some also argue for a separate statute on parties and symbols.

Related concepts

• Reserved symbol
• Free symbol
• Sadiq Ali case
• Paragraph 16A of the Symbols Order

Read more

• Symbols and symbol disputes