While the meeting with MLAs of the rebel camp led by Shiv Sena’s Eknath Shinde is expected to have legal experts, experts say they are expected to see the replies to be filed in the high court by Uddhav Thackeray and the team while pre-vacating the deputy. Be prepared for petitions. Chairman’s decision on disqualification.
While all parties are busy consulting their legal experts on the current situation in Maharashtra, News18 spoke to several experts who have handled cases of defection or acted as authority on laws of the House in Lok Sabha and state legislatures .
current scenario
Shiv Sena has 55 MLAs and the rebel faction claims to have the support of 38 of them, which is more than two-thirds of the number of existing MLAs required to defect without invoking the anti-defection law. Less than two-thirds and all rebels can be disqualified as MLAs.
Maharashtra Legislative Assembly Deputy Speaker Narhari Sitaram Jirwal has issued disqualification notices to 16 rebel MLAs.
Sources say the intention is to pressure the rest to return to the Thackeray camp and save their membership.
Checkmate or Uddhav Sarkar buying time?
According to Satya Pal Jain, Additional Solicitor General of India and former member of the Law Commission, since the rebel MLAs have not violated any law or said or done anything which falls under the mischief of anti-defection law, the legal Basically they cannot be. ineligible.
“They are saying that they are the real Shiv Sena. He has neither left Shiv Sena nor issued any statement against the party. He has not attended any political party meeting,” said Jain.
Earlier the anti-defection law had a provision for one-third division of MLAs, but this was dropped in 2003. There is a chapter (Tenth Schedule) that there will be no talk of two-third merger and their membership. Go.
“They have not done anything to enforce the anti-defection law,” he said. This is an internal dispute of Shiv Sena. The CM has lost majority in the party and the assembly. His government is not in majority,” Jain said.
Eminent Constitutional expert and former Secretary of Lok Sabha SK Sharma plays the role of Speaker and Deputy Speaker in case he plays the role of Speaker.
“These situations arise because of the discretionary powers of the Speaker. When this law was enacted, the speaker was seen as a suitable candidate to decide on party-hoppers. The Speaker has today become a party to these decisions. He was considered a neutral person,” Sharma said.
Sharma, however, believes that the current fight for power in Maharashtra is going to court.
“The Speaker has the power not to recognize the new party led by Shinde. “This fight is the foundation of the legal battle,” Sharma said.
Jain, who worked to win a trust vote over Shivraj Singh Chouhan’s legal battle that led to the collapse of the Kamal Nath government in MP, said if the Speaker does not give the rebel MLAs a fair amount of time to explain their case, it will will be considered. as a violation of the law.
“Maharashtra Assembly disqualification rules also mention that at least seven days time should be given to the speakers to reply. Giving them two days is a violation of the law. Speaker can give them five more days. And in between, if they come to the Speaker saying that they are Shiv Sena and they have not left Shiv Sena, the Vice President cannot disqualify them,” explains Jain.
What if the speaker still disqualifies him?
If the Speaker proceeds to disqualify the 16 MLAs of the Shinde camp, the MLAs can move the court and stay their disqualification. The court can then ask for a speedy trust vote on the floor of the House to eliminate the uncertainty as to who has the majority.
Read also | Maha CM Uddhav authorized to take action against rebel Shiv Sena MLAs, can remove all disgruntled ministers
“There are several judgments prohibiting disqualification on the ground of not giving adequate opportunities to MLAs/MPs or no violations. In Shivraj Singh Chouhan case, SC directed completion of process in one day of trust vote, leading to resignation of Kamal Nath,” said Additional Advocate General of India.
Confused about the merger clause
The Additional Solicitor General of India said that merger is not mandatory for two-thirds of the defecting MLAs. However, if they want to do so, they all have to merge into the party of their choice.
He also clarified the technical details regarding Shiv Sena’s (Balasaheb) case.
“The MLAs who have defected never said that they are leaving Shiv Sena. He always said that he is the real Shiv Sena. He has just changed the name of his party,” said Jain.
role of governor
Sharma believes that if the law and order situation deteriorates, the Governor can write to the President and demand President’s rule. He also says that if things get out of hand, the governor has the power to recommend the assembly to be put in suspended animation.
“However, no one would like to go to the polls and there should be a clear objective of keeping the assembly suspended. But by doing so he will prevent disqualification of MLAs.
Meanwhile, on Sunday evening, the rebel MLA camp led by Eknath Shinde moved the Supreme Court challenging the disqualification notice, appointment of Ajay Choudhary as the leader of the Shiv Sena Legislature Party and seeking protection for their families.
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