Would Speaker, ECI and SCI destroy party system by allowing advantage of wrong. By Hem Raj Jain

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The Legislative Assembly of Maharashtra elected Rahul Narvekar as its Speaker with the support of 39 Shiv Sena MLAs who voted against the whip issued by Shiv Sena whip, Sunil Prabhu to 55 Shiv Sena MLAs as reported at  

https://www.hindustantimes.com/india-news/maharashtra-assembly-speaker-election-voting-july-3-2022-101656827663350.html . In order to avoid disqualification the Chief Minister Eknath Shinde had only one option left with him namely to merge his rebel block of 39 MLAs of Shiv Sena with some political party of Maharashtra Assembly which he didn’t avail of and instead is insisting that he represents / leads the genuine & original political party Shiv Sena hence his whip is to be accepted / recognized.

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 is 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 candidates for election for Parliament. Legislative Assemblies etc) . Hence the whip appointed by Uddhav Thackeray is relevant 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 hence as per Tenth Schedule of the Constitution these 39 MLAs of Shiv Sena stand disqualified. Whether their votes are counted in Speaker’s election of July 3 or in confidence motion of July 4 is a matter to be decided by Speaker, Election Commission of India (ECI) and the Supreme Court of India (SCI) who will be called upon to decide whether these 39 MLAs should be allowed to take advantage of their wrong (the defection, impermissible as per the Constitution).

The matter pending in the SCI (next date July 11) about disqualification of 14 MLAs of Shiv Sena is regarding 2 (1) (a) which reads as -”[ 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]” which will be difficult for Uddhav Thackeray to prove in the SCI.  But the matter of 39 MLAs voting against the whip of Shiv Sena in the speaker’s election or during confidence vote (for Shinde’s government) is regarding  2 (1) (b) which reads as “[a member of a House belonging to any political party shall be disqualified for being a member of the House (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]” which will be very easy with documentary proves (of whip) by Uddhav Thackeray with the Speaker, ECI and SCI. 

“[Here it is pertinent to add that presently Uddhav Thackeray is the Head of political a party Shiv Sena but in the proceeding at the ECI it will matter a lot if the bearing of Shiv Sainiks and their officer bearers from rest of India is raised either by Uddhav Thackeray as mentioned at https://www.pakistanchristianpost.com/exclusive-reports-details/222 or by Eknath Shinde as mentioned at https://www.pakistanchristianpost.com/opinion-details/4031  

Whatever may be the outcome of the fight between Thackeray and Shinde factions of Shiv Sena but one thing is clear that (after voting by 39 rebel MLAs of Shiv Sena on July 3 during election for Speaker against the whip of Shiv Sena), the incumbent office of the Speaker (Rahul Narvekar) and of the Chief Minister (Eknath Shinde) of Maharashtra are against the letter and the spirit of the Tenth schedule of the Constitution of India.

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