While Shiv Sena’s Eknath Shinde-led rebel camp is expected to have legal experts in the meeting with the MLAs, experts say they will have to prepare for replies and petitions to be filed in the High Court by Team Uddhav Thackeray, pre-empting the Deputy Speaker’s decision on the disqualification.
While all parties are busy consulting their legal experts on the prevailing situation in Maharashtra, News18 spoke to a range of experts who have handled defection cases or served in the Lok Sabha and state assemblies as authority on laws of the house.
THE CURRENT SCENARIO
The Shiv Sena has 55 MLAs and rebel faction claims to have support of 38 of them, which is more than the two-thirds of the strength of the existing MLAs required to defect without invoking anti-defection law. Any less than two-thirds and all rebels can be disqualified as MLAs.
Deputy Speaker of the Maharashtra Assembly Narhari Sitaram Zirwal has served disqualification notices to 16 of the rebel camp MLAs.
The intention, sources say, is to create pressure on the rest of them to come back to the Thackeray camp and save their membership.
CHECKMATE OR IS UDDHAV GOVT BUYING TIME?
According to Satya Pal Jain, Additional Solicitor General of India and a former member of Law commission, as the rebel MLAs have not violated any law or said or done anything which will fall under the mischief of the anti-defection law, legally they cannot be disqualified.
“They are maintaining that they are the real Shiv Sena. They have neither left the Shiv Sena and nor have they issued any statement against the party. They have not attended meeting of any political party,” opined Jain.
Earlier, in the anti-defection law, there was a provision of split of 1/3rd MLAs, but it was deleted in 2003. There is a chapter (tenth schedule) that talks of two-thirds of the merger and their membership will not go.
“They have not done anything that might invoke the anti-defection law. This is the internal dispute of the Shiv Sena. The CM has lost the majority in the party and in the Vidhan Sabha. His government is not in majority,” said Jain.
S K Sharma, noted constitution expert and former secretary of Lok Sabha, has a take on the role of speakers and deputy speakers in case they don the role of the Speaker.
“These situations arise because of the Speaker’s discretionary powers. When this law was made, the Speaker was seen as a fit candidate to adjudicate on party-hoppers. Speakers today have become party to these decisions. They were assumed to be neutral person,” said Sharma.
Sharma, however, believes that the current battle for power in Maharashtra is heading to court.
“The Speaker has the power not to recognize the new party led by Shinde. “This fight is the foundation of a legal battle,” stated Sharma.
Jain, who worked on Shivraj Singh Chouhan’s legal battle to have a vote of confidence that led to the fall of Kamal Nath government in MP, said if the Speaker doesn’t give reasonable time to rebel MLAs to explain their case, this will be considered as violation of the law.
“The Maharashtra Assembly disqualification rules also mention Speakers should give at least seven days to give replies. Giving them two days is in violation of the law. The Speaker can give five more days to them. And in between, if they come to the Speaker saying they are the Shiv Sena and that they have not left Shiv Sena, the Deputy Speaker cannot disqualify them,” explains Jain.
WHAT IF THE SPEAKER STILL DISQUALIFIES THEM?
If the Speaker goes ahead with the disqualification of 16 Shinde camp MLAs, the MLAs can move court and get a stay on their disqualification. The court can then ask for a speedy vote of confidence on floor of the house ending uncertainty as to who has majority.
“There are a number of judgments giving stay on disqualification on the basis of not enough opportunity given to MLAs/MPs or there was no violation. In Shivraj Singh Chouhan case, the SC gave the direction to complete the process in a day of vote of confidence, leading to resignation of Kamal Nath,” added the additional solicitor general of India.
ON CONFUSION CAUSED ON MERGER CLAUSE
The Additional Solicitor General of India said that the merger is not compulsory for the two-third defected MLAs. However, if they want to do that, all of them have to merge with a party of choice.
He also clarified the technicalities further with regard to the case of Shiv Sena (Balasaheb).
“The MLAs who have defected never said they are leaving the Sena. They always said they are the real Shiv Sena. They have just renamed their party,” stated Jain.
ROLE OF GOVERNOR
Sharma believes if the law and order situation worsens, the Governor can write to President and seek President’s rule. He also says that if things go out of hand, the Governor has power to recommend keeping assembly in suspended animation.
“However, no one would like to go to polls and keeping the assembly in suspended animation should have a clear objective. But by doing so, he would prevent the MLAs from being disqualified,” opines Sharma.
Meanwhile, on Sunday evening, the Eknath Shinde-led rebel MLA camp moved the Supreme Court challenging the disqualification notices, appointment of Ajay Choudhari as the Shiv Sena Legislature Party leader and seeking security for their families.
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