'Eknath Shinde has incurred his own disqualification'

'At the moment the anti-defection law works only in favour of Uddhav Thackeray's Shiv Sena, the original Shiv Sena.'
'The Eknath Shinde camp is at a disadvantage unless they merge with another political party.'
'Otherwise, they will not be saved (from being disqualified).'

Constitutional expert and former secretary general of the Lok Sabha P D T Achary tells Prasanna D Zore/Rediff.com that there is ground not just for the disqualification of 16 rebel MLAs against whom the Uddhav Thackeray faction has filed the disqualification petition, but all the 39 MLAs -- the strength of the Shiv Sena's breakaway faction supporting Eknath Shinde -- under the provisions of the anti-defection law.

The situation as it exists today in Maharashtra is even as the Supreme Court will hear the plea filed by the Uddhav Thackeray faction's chief whip Sunil Prabhu for suspension of Eknath Shinde and 15 rebel MLAs on July 11, the newly elected assembly Speaker Rahul Narwekar has accepted the plea filed by the Eknath Shinde faction's chief whip Bharat Gogawale to disqualify 16 MLAs of the Uddhav Thackeray faction.

"That doesn't mean anything. It can't hold up before the court should the Uddhav Thackeray group decide to challenge it," says Achary about Gogawale's plea about which Narwekar's office has confirmed that notice will be sent to these MLAs.

Rahul Narwekar, the newly elected assembly speaker has recognised the Eknath Shinde group's Bharat Gogawale as the Shiv Sena's chief whip.
How legal is this when the Uddhav Thackeray camp had already removed Eknath Shinde as its leader in the assembly and appointed Ajay Choudhuri as its party leader and Sunil Prabhu as its chief whip?

No, he (the Speaker) cannot do that. That is not his job. The speaker cannot remove or recognise anybody.

Actually, the leader of a party, leader of a group, chief whip, etc are positions which belong to a (political) party and these appointments (leader of a party, leader of a group, chief whip, etc,) are done by the party. Not by the speaker.

The speaker doesn't recognise these (leader of a party, leader of a group, chief whip, etc,) positions.

But Narwekar has recognised the Eknath Shinde group's Bharat Gogawale as the Shiv Sena's chief whip.

The speaker can recognise the leader of the Opposition, but the position of the leader of a party, leader of a group, chief whip, are some positions which are decided by the party itself and then the list (name) is given to the speaker. The speaker doesn't have to recognise (the chief whip, etc,) or do anything beyond that.

The list (leader of a party, leader of a group, chief whip) is given to the speaker only so that he can communicate with them.

So, a speaker of the assembly doesn't have the Constitutional right to recognise somebody as the chief whip or otherwise?

In Parliament we have a law Leaders And Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998 (external link) where there is no provision for the speaker recognising any of them.

The speaker recognises groups and parties inside the House. Recognition is given by the speaker to a party or the group depending on the numbers which they have. That is what the speaker does.

If it boils down to who has bigger numbers, then in Maharashtra the Eknath Shinde group has 40 Shiv Sena MLAs.

No, there is a difference. The current situation of Shiv Sena groups in Maharashtra is a tricky situation.

What has happened (in Maharashtra) is that the legislative wing of a party (the Shiv Sena) with two-thirds majority, have gone ahead and formed a government with another party (the Bharatiya Janata Party) without the approval of party president (Uddhav Thackeray) and the political party.

He (Shinde) has no approval of the party (Shiv Sena, to form the government) to join hands and form a government with the Opposition party (BJP). But that is what has happened (in Maharashtra).

Otherwise, they (the 40 MLAs of the Shinde group) belong to the Shiv Sena even now.

So far as the (political) party is concerned, the highest functionary is its president and the decision-making authority is the president.

It is the president who has to give his approval for such actions (forming a government with any other party).

The legislative wing of a (political) party has no independent existence, it cannot take independent decisions.

The president (of a political party) has over-riding authority over the legislative wing. That is how the system works here (in India).

The legislative wing cannot take decisions (to form a government with any other political party) on their own without even taking the president into confidence.

Can the Eknath Shinde group's decision to elect its own leader in the assembly (Eknath Shinde) and chief whip (Bharat Gogawale) be considered illegal then?

I will not call it illegal, but these decisions do not have the approval of the party president.

My basic proposition is that the legislative party cannot take decisions independently about the party leadership.

Whose whip matters now? Both the Shinde camp and Uddhav camp have appointed their own chief whips and leaders in the assembly?

The whip of the Shiv Sena led by Uddhav Thackeray (group) should matter because Eknath Shinde and the 39 MLAs of the Shiv Sena who have supposedly broken away from the party they all belong to the Shiv Sena.

Under the anti-defection law the member of the House is decided based upon which party that member fought the election from. That is what the Tenth Schedule says.

So, when the speaker is bound to take a decision under the anti-defection law he has to see which party does Eknath Shinde belong to.

When he applies this particular provision in the Tenth Schedule, then he will find that Eknath Shinde belongs to the Shiv Sena because he fought the election under the symbol of the Shiv Sena (of which Uddhav Thackeray is the president). That is a settled law and settled decision.

Is there any way in which Eknath Shinde could take over Uddhav Thackeray's Shiv Sena as he has the support of 39 MLAs?

Actually, the party is much bigger than its legislative wing.

Eknath Shinde has taken over the legislative wing and that is okay, but it is not okay that he has gone ahead and formed a government without the approval of his party's president.

This means he has incurred his own disqualification because (by his conduct) he has voluntarily given up the membership of his party on whose symbol he was elected.

(Uddhav Thackeray's) Shiv Sena is very much within its rights to move the disqualification petition. That is what they did (moved a petition before the assembly deputy speaker to disqualify 16 rebel MLAs which was challenged by the rebel MLAs in the Supreme Court, and which the apex court will hear on Monday, July 11).

The newly elected speaker (Rahul Narwekar) of the Maharashtra legislative assembly will have to do it (once the matter comes up before him as he is the Constitutional authority to decide cases under the anti-defection law).

There is no other way. That is his Constitutional duty.

The speaker is the Tribunal in this case. When he decides anti-defection cases he acts as a Tribunal and he is bound by the Constitution and rules (governing the anti-defection law).

Will the Speaker have to examine disqualification of the 16 MLAs demanded by Uddhav Thackeray's group before the decision of the Supreme Court or can he do it even after the decision?

What is the Supreme Court deciding? There are two issues before the Supreme Court: that there was a no-confidence motion moved against the deputy speaker (Narhari Jhirwal) and the Supreme Court will have to decide whether the deputy speaker could adjudicate over the disqualification of 16 Shiv Sena MLAs as petitioned by Uddhav Thackeray's group under the anti-defection law.

Now, that scenario has become infructuous because a speaker has been elected and this petition will be decided upon by the speaker.

In the second issue the Supreme Court already gave time to these 16 (rebel) MLAs till July 12 to reply to the disqualification plea filed by the Shiv Sena. Now, these 16 MLAs will have to reply to the (disqualification) petition (against them) before July 12.

Under the anti-defection law you get exemption from disqualification only on one ground, that is, merger (with some other party). Under the provisions of the law, the original breakaway faction has to merge and seek mandate of the assembly which has to agree to that merger.

If they don't merge, then there is no ground under which they can seek exemption from disqualification.

Given the various clauses governing the anti-defection law, what will work in favour and against both the groups?

At the moment the anti-defection law works only in favour of Uddhav Thackeray's Shiv Sena, the original Shiv Sena.

The Eknath Shinde camp is at a disadvantage unless they merge with another political party. Otherwise, they will not be saved (from being disqualified).

Even if the speaker (Rahul Narwekar) takes the decision (whenever the matter comes before him) in favour of the Eknath Shinde group, the other side (the Uddhav faction) will challenge it in court.

What legal complexities could arise if the Supreme Court observes that there is ground for disqualification of the 16 MLAs of Eknath Shinde group on July 11? Could it have any impact on the newly sworn-in government led by Eknath Shinde? Could his government collapse?

Well, if they don't have the majority (in case and after the disqualification of 16 MLAs if the speaker disqualifies them) then they will collapse.

I don't understand why they (the Uddhav group) filed a petition for disqualification of only 16 MLAs because all the members (rebel MLAs) are liable to be disqualified under the anti-defection law because they have voted against the direction of Uddhav Thackeray's chief whip.

If these 16 are disqualified, then the other people (rebel MLAs) will also have problems.

The Shiv Sena can always say that these rebel MLAs have voluntarily given up their membership of the party, therefore they should be disqualified.

The speaker just has to find out from which party did these rebel MLAs fight their election from. That is the criteria to decide which party the member (the elected MLA) belongs to for the purpose of adjudicating cases under the provisions of anti-defection law. The law stands settled here.

For all practical purposes, the rebel MLAs belong to the Shiv Sena and they are bound to obey the directions issued by the chief whip of Shiv Sena.

Their (Uddhav's group) legislature strength may have shrunk, but they still remain the original Shiv Sena.