Should the "test of legislative majority" be the decisive criterion in deciding which faction is the real political party? Discuss in light of recent judicial pronouncements.

Under Paragraph 15 of the Election Symbols Order, 1968, the Election Commission (EC) decides which rival group is the "real" party. The "test of majority" approved in Sadiq Ali (1971) has since come to mean counting legislators [2]. That count is a useful indicator. Recent judgments show it cannot decide the question on its own.

Why the legislative-majority test is used

• Objective and quick: signed affidavits from MLAs and MPs can be checked. Organisational records are often disputed.
• Fallback when party constitutions fail: in the NCP case (February 2024), the EC relied on legislative majority. Both factions had worked outside the party constitution [4].
• Precedent: the EC awarded the Shiv Sena name and symbol to the Shinde faction (2023) on similar reasoning [4].

Why it should not be decisive

• Circularity: the legislators who switched sides are counted as proof of legitimacy. Their own disqualification is still pending before the Speaker, on a separate and slower track [3].
• Rewards defection: the 91st Amendment (2003) removed the "split" defence. Symbol disputes now let factions achieve what the Tenth Schedule forbids [3].
• Ignores the wider party: members, cadres and the organisation are sidelined. These are the basis of intra-party democracy.

Recent judicial pronouncements

• Subhash Desai (Constitution Bench, 2023): the EC should not rely on legislative majority alone. It must weigh the party constitution and organisational structure, because legislative numbers may change once disqualification petitions are decided [2].
• Keisham Meghachandra Singh (2020): disqualification petitions should be decided within three months. The Court asked Parliament to consider an independent tribunal in place of the Speaker [3].
• TMC dispute (September 2026): a Bench led by CJI Surya Kant gave the EC three months after pleadings close to decide the Mamata Banerjee–Ritabrata Banerjee dispute. It refused the EC's request for 5–6 months [1]. Courts are now enforcing timely adjudication.

Legislative strength is a party's visible muscle, not its identity. The EC should apply a layered test: first the party constitution, then organisational majority, and legislative numbers only after the Speaker has ruled on disqualification. Parliament should also act on the Law Commission's 170th Report (1999) on closing defection loopholes and create a neutral, time-bound tribunal [3]. That would protect constitutional morality and intra-party democracy instead of rewarding defection.