Uddhav Thackeray should immediately file writ petition of quo-warranto against Narvekar and Shinde in MHC or SCI. By Hem Raj Jain

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The Maharashtra Legislative Assembly on July 3 elected Rahul Narvekar as Speaker with the support of 39 Shiv Sena MLAs and on July 4, Chief Minister Eknath Shinde won a vote of confidence with the support of 40 Shiv Sena MLAs. The Shiv Sena rebel MLAs voted against the whip given by Shiv Sena whip Sunil Prabhu to 55 Shiv Sena MLAs. Chief Minister Eknath Shinde had only one option left to avoid disqualification namely the merger of his rebel group of 40 Shiv Sena MLAs into a political party in the Maharashtra Legislative Assembly which he did not do and instead kept on saying that he is leading  / representing the Shiv Sena so his whip should be recognized and the Speaker did just that.

Anyone can read the anti-defection laws as mentioned in the Tenth Schedule of the Constitution of India (the relevant part as given below) where a clear distinction has been made between ‘Legislative Party’ on one side and ‘original political party’ / ‘Political Party’ on the other side:-

“[1.Interpretation.—In this Schedule, unless the context otherwise requires,—

b) "legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; 

(c) "original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2;

2. Disqualification on ground of defection.—

(1) Subject to the provisions of 3 [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House 

(a) if he has voluntarily given up his membership of such political party; or 

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf

Explanation.—For the purposes of this sub-paragraph,— (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.  

4. Disqualification on ground of defection not to apply in case of merger.—

(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party— 

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or 

(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. 

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger]”.

- As per this Tenth Schedule of the Constitution Shinde was the leader of the ‘Legislative Party’ of Shiv Sena whereas Uddhav Thackeray remains the leader of political party / original political party (which issues Form A & B to the Shiv Sena candidates for election for Parliament, Legislative Assemblies etc) . In other words constitutionally the political party is allowed to issue whip on the legislative party. Hence the whip appointed & issued by Uddhav Thackeray is relevant & valid as far as anti-defection laws are concerned. 

Shinde faction of Shiv Sena didn’t avail of the remedy of merger before vote in assembly for electing the Speaker or for confidence vote hence as per Tenth Schedule of the Constitution these 40 rebel MLAs of Shiv Sena stand disqualified. Whether their votes are counted in Speaker’s election of July 3 or in confidence vote of July 4 is a matter to be decided by Speaker, Election Commission of India (ECI), Maharashtra High Court (MHC) and the Supreme Court of India (SCI) who will be called upon to decide whether these 40 MLAs should be allowed to take advantage of their wrong (the defection, impermissible as per the Constitution).

The case pending in the SCI regarding the disqualification of 14 Shiv Sena MLAs (next hearing date July 11) is about said 2 (1) (a) which is about voluntarily resigning from the political party, which will be difficult for Uddhav Thackeray to prove in the SCI. But it will be very easy for Uddhav Thackeray to prove to the ECI or the MHC or the SCI that 40 MLAs voted against the Shiv Sena whip during the Speaker's election and during the confidence vote hence they are  disqualified as per said 2 (1) (b). 

Presently people are talking only about Maharashtra, but it will make a big difference (if the impact and relevance of Shiv Sainiks and their office bearers in the rest of India is raised by Uddhav Thackeray or by Eknath Shinde or by Shiv Sainiks or their office bearers from the rest of India) in the ECI or the MHC or the SCI. 

Whatever may be the outcome of the fight between Uddhav Thackeray and Eknath Shinde factions of Shiv Sena, one thing is clear (after the election of Speaker on July 3 and confidence vote of July 4 where  40 rebel MLAs voted against the Shiv Sena whip), remaining in office for the Speaker (Rahul Narvekar) and for Maharashtra Chief Minister ( Eknath Shinde) is against the letter and spirit of the Tenth Schedule of the Indian Constitution. 

Therefore, Uddhav Thackeray (or any other from Maharashtra) should immediately file a writ petition of quo-warranto against Speaker Rahul Narvekar and Chief Minister Eknath Shinde (by making Maharashtra Governor also a party) in the Maharashtra High Court or the Supreme Court of India

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