The newly sworn-in Chief Minister of Maharashtra Eknath Shinde cannot take a plea that he represents the real Shiv Sena, opined PDT Achary, former Secretary General of Lok Sabha.
In an interview with Manu Sebastian, the Managing Editor of LiveLaw, Achary said that such a plea is not allowed by the anti-defection law under the tenth schedule of the Constitution. The only plea he can raise is that there is a merger between two parties and that his group has 2/3rd strength of the legislative party.
"This gentleman(Shinde), the Chief Minister, he cannot take a plea that he is the real Shiv Sena. Because, that is not a plea that is allowed by the law, the anti-defection law. He cannot raise that plea. The only plea that he can raise is, we are 2/3rds, there is a merger between two parties, we are the 2/3rd of the legislature party and we agree with that merger and therefore we may be exempted from the disqualification. That is the only plea which is allowed. You cannot raise the plea that we are the real Shiv Sena so that we may not be disqualified. No. No. Not at all. Because, under the anti-defection law, under the 10th schedule, there is a specific mention how your party affiliation will be determined", he said.
All dissidents have given up party membership
Achary also opined that all the 39 dissident MLAs have voluntarily given up the party membership as per paragraph 2 of the tenth schedule through their acts and have incurred disqualification.
"All of them, by their actions or acts, have voluntarily given up the membership of the party. All the 39 or 40, whatever be the number, they have incurred disqualification. That is just a question of Speaker deciding it", he said.
Achary explained that "Shiv Sena as a party has not authorized Shinde to enter into an alliance with the BJP and form the Government".
"The party Shiv Sena is led by Uddhav Thackeray. He is the Party Chief. And without the Party Chief's consent or without the consent of the whatever high-powered committee or decision making authority of the Party, without their support, how can a party member, a member of the legislative wing of the party, go and enter into an alliance with another party and become a Chief Minister. This is a very tricky kind of a situation. It is the party which has to take a decision about this. Not the legislative wing. Legislature party is just a wing of the original political party. All decisions are taken by the original political party. And legislature party is not registered by the Election Commission. It is not a legal entity as such, that it can independently take decisions. That the party has to decide.", he said.
He said that it is totally an unauthorised action on the part of Shinde and this gives Thackeray a ground to move against him under tenth schedule.
He however added that with a new Speaker coming after Shinde taking charge as the Chief Minister, complications might arise.
"Recognizing a party is the function of the Election Commission. So far as the house is concerned, each party gives a list of its office bearers to the Speaker and Speaker goes by that...the legislature party leader, whip and other office bearers. That list is with the Speaker. That list shows that Uddhav Thackeray is the President. Speaker has to go by that. But in this case, the Speaker who is going to get elected will not go by this. It won't be a neat kind of operation. The Speaker will say I recognize them (Shinde group) as the legislature party and the rest of the things can be decided by the Election Commission, but for this house, I will recognize Mr.Shinde and the members supporting him as the legislature party Shiv Sena. If he says that, nothing can be done. He can wriggle out of that situation perhaps in this manner".
Relevant portions of the video :
10th schedule does not allow Eknath Shinde to be real Shiv Sena - from 32.39 minutes.
All dissidents have given up party membership - From 26.40 minutes.
Watch the video here :