Will Supreme Court's AIADMK rule apply to Shiv Sena too?

The case of the two Shiv Sena factions for legitimacy and the party symbol, 'Bow and Arrow', is now before the Election Commission.
Whichever way the EC findings go, the other can be expected to move the Supreme Court.
They would need a final verdict before the parliamentary polls, points out N Sathiya Moorthy.

In a significant and possibly path-breaking way, the Supreme Court recently directed the little-known presidium chairman of the Opposition AIADMK, A Tamizhmagan Hussain, to obtain the opinion of the party's original general council, for fielding a common candidate in the upcoming assembly by-election for the Erode East constituency -- and also authorised him to communicate such decision to the Election Commission.

In doing so, the court also authorised him to sign what is known as the 'B Form' for the allocation of the party's 'Two Leaves' symbol and submit it to the returning officer -- an area that has thus far been restricted to the near-exclusive jurisdiction of the poll panel.

Thankfully, the issue on the ground got solved subsequently after the party faction under 'coordinator' and three-time chief minister O Panneerselvam (OPS) decided to withdraw its candidate T Senthil Murugan, who was among the earliest ones to file his papers.

OPS had earlier declared that they would do so only in favour of the BJP leader of the NDA coalition at the Centre -- if the latter chose to field a candidate -- and not otherwise.

It had meant that they would not yield to the rival faction led by predecessor chief minister Edappadi K Palaniswami (EPS), who claims to be the 'acting general secretary' of the party, pending the Supreme Court's disposal of OPS's plea against the general council meeting from where his few followers were 'forcibly thrown out', months ago.

Not any more, as a continued court contest, that too when EPS actually had a clear, landslide support in the general council and also the 66-member legislative party, where OPS had only four backers to count as his own.

Yet, he may have had a case in the courts -- where his plea against the general council meeting is pending a verdict -- but a continued contest would have meant that the EC would have been left with little choice but to 'freeze' the Two Leaves symbol.

The OPS faction was not ready for such an eventuality, as unlike when the issue got flagged with the death of the Congress legislator, Tamizhmagan Evera, when EPS was seen as a spoiler, Panneerselvam would now be personally blamed for the symbol freeze, when party cadres, spread over three generations, have an emotional and sentimental attachment to 'MGR's symbol' -- rather chosen and given to them by AIADMK founder, charismatic actor-politician, the late M G Ramachandran.

This sentiment acquired greater electoral and political value after the two factions, then led by MGR's widow Janaki Ramachandran and his popular co-star, Jayalalithaa Jayaram, lost out very badly in the post-MGR assembly polls of 1989.

They reunited after Janaki announced her retirement from a short-lived political career, and the re-united party swept the 1991 elections under Jaya, though much of it owed to the Rajiv Gandhi assassination.

AIADMK cadres want to believe that the party's victory owed more to the restoration of the 'Two Leaves' symbol, as if it were an electoral talisman.

With even the breakaway AMMK too of one-time party general secretary of the unified AIADMK, T T V Dhinakaran, withdrawing its candidate, the EPS faction's K S Thennarasu, filed the nomination on the closing day, on Tuesday, February 7, for polling that will take place on February 27.

The AMMK faction cried off, citing non-allocation of the once-reserved 'Pressure Cooker' symbol as the party failed to maintain the minimum requirements in the 2021 assembly polls.

With the presidium chairman handing over the 'majority decision' to the EC in good time, decks were cleared for the EPS nominee to get the Two Leaves symbol.

Incidentally, this is the first time that the party chairman has signed the B-Form, in the place of general secretary in the days of MGR and Jayalalithaa (including when the latter was hospitalised in Chennai, ahead of her death in December 2016).

In the parliamentary polls of 2019 and assembly elections in 2021, the forms for party candidates across the state were co-signed by OPS as co-ordinator and EPS as joint co-ordinator.

It also means that as 'leader', EPS has to prove himself.

Depending on Thennarasu's electoral performance, the call for re-unification of AIADMK factions could commence all over again. The BJP might also nudge more than already.

The related question is if the OPS faction and the AMMK would cast their lot with the 'party' candidate or vote against him or stay away.

Technically, there is still the question if OPS can still contest the chairman's ways in the Supreme Court even though he now does not have a candidate.

Anyway, the AMMK candidate had polled only 1,000-plus votes in the 2021 assembly polls.

Against this, Seeman's Naam Tamizhar Katchi (NTK) had polled a respectable 11,000-plus votes, or 7.65 per cent, and another actor-politician Kamal Hassan's MNM obtained 10,005 votes, 6.58 per cent.

The NTK has fielded a candidate this time, too, while the MNM is backing Congress candidate E V K S Elangovan, the 74-year-old father of the late incumbent.

The real fight is between Elangovan and Thennarasu, with the Congress high command, for a chance, announcing its candidate without the usual confusion, which this time round haunted candidate-selection in the AIADMK, an unprecedented instance in every which way.

The ruling DMK ally of the Congress, under instructions from party boss and Chief Minister M K Stalin swung into action very long ago -- even before the state Congress had got its act together.

The BJP ally, which was said to be behind the travails and trouble-shooting especially between the OPS and EPS factions, too has floated a long list of campaigners, though up to a point there was unsubstantiated speculation that the party may field a candidate of its own.

In fact, state BJP chief K Annamalai was seen as going back and forth on the party's stand on the by-election issue, and also met with the faction leaders, as if negotiating a patch-up, even if temporarily for the by-election.

A battalion of senior DMK ministers and other leaders are almost literally camping in the constituency, and have been launching grassroots-level campaigns as if the party's prestige, Stalin's standing and the government's performance were at stake.

The EPS faction too has equally able and even more experienced local leaders, who were ministers too when the party was in power -- and the campaign is going to heat up in the coming days, all across the constituency.

It is a referendum, yes, on the Stalin government on the one hand, and on the EPS leadership of the AIADMK, now that he cannot complain on the symbol issue.

Some local reports claimed that the BJP might have smartly scuttled his move to contest, and hopefully win the seat, even if on an 'independent' symbol, if only to 'prove' his own acceptance as party leader, after MGR and Jayalalithaa.

It was a huge risk he was willing to take, or so it seemed.

Incidentally, EPS had taken the symbol issue to the Supreme Court, where the bench comprising Justices Dinesh Maheshwari and Hrishikesh Roy had already reserved judgment on OPS's plea, contesting the party's 'general council' called by the other, and the decisions taken thereof.

The 'general council' had elected EPS as 'acting' general secretary, a post held by MGR and Jayalalithaa in their time.

Jayalalithaa's aide V K Sasikala Natarajan held the post for a time.

That was after Jayalalithaa's death and before she herself ended up serving a four-year term in a Bengaluru prison, as if she was also standing in for her departed boss in the 'wealth case' pertaining to Jayalalithaa's first term as chief minister (1991-1996).

In its counter to EPS's submission, the Election Commission pointed out how neither faction had approached them for the party symbol, and had moved the courts, instead (but on the validity of the general council).

The EC submitted now that the by-election had been notified, the returning officer (alone) was competent to decide on the symbol question.

It was then that the division bench directed AIADMK presidium chairman to hold a general council meeting within three or four days, so to say, or obtain the views of all members, including those identified with the OPS faction.

In doing so, the judges clarified that the order pertained exclusively only to the symbol issue in the Erode East by-election, and would not confer any right on either faction to claim anything more until the verdict in the 'main case' became available.

In doing so, the bench mentioned that it was passing what amounted to an interim order only because the AIADMK should not go unrepresented in the by-election.

This is when the Constitution does not recognise 'political parties' in any which way, and all functions, rights and responsibilities, in matters of political parties and elections are vested only in the Election Commission, both under the Constitution and under the Representation of the People Act.

It means that the Election Commission alone has the original jurisdiction in election-related matters and the higher judiciary (both the high court and the Supreme Court) are only appellate authorities, possibly with no 'original jurisdiction'.

Incidentally, AIADMK Chairman Tamizhmagan Hussain is not a party before the court in the two cases.

Hence his choice to obtain the views of the general council can be seen as being 'non-partisan'.

However, the fact also remained that he had already identified with the EPS faction and had also presided over the contested 'general council', which had elected EPS as the 'acting general secretary'.

If the OPS faction had stood its ground, it might have contested the court's assumption of the party chairman's impartiality.

It would have also questioned the way he collected the views of general council members by calling not for the names of aspiring candidates but only including EPS faction's nominees' names in his circular-mail.

OPS faction leaders called it a 'referendum' where there was no choice.

However, with the OPS withdrawing his candidate, all such arguments may fall flat.

Yet, now that the apex court has set a sort of precedent in handling poll-related faction-feuds within political parties, purportedly over the head of the Election Commission, the question arises if, for instance, the court would apply the precedent and the attendant yardstick to such other matters pertaining to other parties facing internal feud, starting with the Shiv Sena in Maharashtra.

There, two different factions of the party are respectively in the government and the Opposition in the state.

The case of the two Shiv Sena factions for legitimacy and party symbol, 'Bow and Arrow', is now before the Election Commission.

Whichever way the EC findings go, the other can be expected to move the Supreme Court.

They would need a final verdict before the parliamentary polls, though in their case, they have approached the EC and rightly so, as the commission itself pointed out in the AIADMK case.

Say, if there were a by-poll under near-similar circumstances, or even general elections that are due in the state in the second half of next year, would the Supreme Court apply the Erode East yard-stick and work out a viamedia?

It may then tantamount to the Supreme Court trying to fix faction feuds in political parties, which is what the court's 'pro-activism' in electoral matters could well boil down to.

N Sathiya Moorthy, veteran journalist and author, is a Chennai-based policy analyst and political commentator

Feature Presentation: Aslam Hunani/Rediff.com