The Election Commission's mandate to decide intra-party disputes ahead of Speaker-led disqualification proceedings raises questions of institutional overreach. Discuss with reference to the Shiv Sena symbol case.

Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 empowers the Election Commission of India (ECI) to decide which rival faction is the "real" party [1]. The Shiv Sena case shows how this statutory power can outrun the Speaker's constitutional jurisdiction under the Tenth Schedule.

Two tracks that collided

• The Tenth Schedule vests disqualification of defectors in the Speaker, subject to judicial review [3].
• The Symbols Order vests recognition and symbol allotment in the ECI — a separate, administrative track.
• On 17 February 2023 the ECI recognised the Shinde faction, backed by 40 of 55 MLAs, and allotted the "bow and arrow", while disqualification petitions against those very MLAs were still pending [4].

Why this suggests overreach

• A legislative majority whose legality was sub judice became the operative basis for deciding party identity, effectively pre-judging the Speaker's question.
• Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023) held that the legislature party cannot act independently of the political party [2]; the Shinde faction nonetheless argues before the CJI Surya Kant Bench that the majority test was not foreclosed [4].
• ECI findings are hard to undo — the only remedy is prolonged litigation, as the pending 2024 petitions show [4].

The case for the ECI's role

• The ECI is an Article 324 constitutional body performing a distinct statutory function — symbol allotment, not legislator membership.
• Elections cannot wait; an unresolved symbol would leave voters and candidates in limbo.
• Recognition tests weigh the organisational wing too, not MLA numbers alone; and Speakers, being partisan, have themselves delayed decisions [3].

The conflict is less about bad faith than about unsequenced jurisdictions. A statutory rule requiring the ECI to defer symbol adjudication until disqualification petitions are decided within a fixed timeline — as the Court has hinted "may need a relook" — would preserve both electoral certainty and the Tenth Schedule's purpose of curbing defection.