In a setback for the Uddhav Thackeray-led faction, the Election Commission (EC) on Friday recognised the Eknath Shinde-led faction as the real Shiv Sena and ordered the Shinde camp to retain the official name and the “bow and arrow” symbol of the party amid an ongoing tussle between the Shinde and the Uddhav Thackeray factions over the symbol rights.

The EC has also announced that the Uddhav Thackeray-led Sena will retain the interim party name Shiv Sena UBT and poll symbol flaming torch. As of now, the two factions were using separate party names and symbols allotted to them after the EC “froze” the Shiv Sena name and party symbol until the dispute was decided by it. This is for the first time that the Thackeray family has lost control of the party founded in 1966 by Balasaheb Thackeray on the principle of justice for the sons of the soil.

In a late night development, the Thackeray camp decided to move a special leave petition in the Supreme Court on Monday challenging the EC’s order.

The Uddhav and the Shinde factions have been at loggerheads over the party name and symbol since June 2022, when Shinde walked out of the Maha Vikas Aghadi Government with 40 MLAs in a high-voltage revolt.

The order was passed by Chief Election Commissioner Rajiv Kumar and Election Commissioners Anup Chandra Pandey and Arun Goel on a plea by the Shinde faction seeking decision on which is the real Shiv Sena — the Shinde camp or the Thackeray camp.

“The party name ‘Shiv Sena’ and the party symbol ‘bow and arrow’ will be retained by the petitioner faction,” the Commission said in its order. “The name of “Balasahebanchi Shiv Sena” and symbol of “Two Swords and Shield”, which was allotted to the petitioner by way of the interim order dated October 11, 22 in this dispute case will henceforth be frozen with immediate effect and will not be used,” reads the order.

The commission said it applied the principles of the “Test of party Constitution” and the “Test of Majority” while finalising the order.

In a 78-page order, the commission observed that the current constitution of the Shiv Sena is undemocratic. “It has been mutilated to undemocratically appoint people from a coterie as office bearers without any election at all. Such party structures fail to inspire confidence,” it said.

In a landmark decision with far-reaching implications on political parties and their conduct, the EC advised all political parties to reflect democratic ethos and principles of inner party democracy and regularly disclose on their respective websites aspects of their inner party functioning, such as organisational details, holding of elections, the copy of Constitution and list of office bearers.

The Commission observed that the party had been made into a fiefdom by undemocratic norms of the original Constitution of Shiv Sena.

The Commission said MLAs backing Eknath Shinde got nearly 76 per cent of votes polled in favour of the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly polls.  The Uddhav Thackeray faction’s MLAs got 23.5 per cent of votes polled in favour of the winning Shiv Sena candidates, the three-member Commission said in a unanimous order.

The Constitution of Shiv Sena amended in 2018 is not given to EC. Amendments had undone the act of introducing democratic norms in the Party Constitution of 1999, brought by the Late Balasaheb Thackeray at the insistence of the Commission,” the EC added.

The Commission said the respondent (Thackeray faction) had relied heavily on the 2018 Constitution of the party to stake claim to the poll symbol and the organisation but the party had not informed the Commission about the amendment to the Constitution. “The amended Constitution of 2018 is not on record of the Commission,” the order said, and added that it found that the party Constitution, on which the Thackeray faction was placing strong reliance, to be “undemocratic”.

“To put it in a nutshell, the party Constitution envisages the President nominating the Electoral College that is to elect him. This goes against the spirit of democracy and negates the very purpose for which the entire exercise was carried out,” the Commission said.

The EC observed that the undemocratic norms of the original Constitution of Shiv Sena, which was not accepted by the Commission in 1999 have been brought back in a surreptitious manner further making the party akin to a fiefdom.

“The constitution of political parties ought to provide for free, fair and transparent elections to the posts of office bearers and a further free and fair procedure for the resolution of internal disputes. These procedures ought to be difficult to amend and should be amendable only after ensuring larger support of the organisational members for the same. The very survival and sustenance of the party depends on this. Yet, the party Constitutions are often amended to allow for its self-destruction by obliterating the internal democratic mechanisms,” the EC said.”

“In the absence of such democratic internal structures, internal disputes are bound to create rifts and factions leading to determination of the question by the Election Commission under the Symbols Order,” it said.