Legal Endgame To The Maharashtra Constitutional Crisis
The Maharashtra crisis has entered day four, and what are the various options before the parties?
The Shiv Sena rebellion has turned into an unprecedented spectacle for the party. It has been playing out in the public for a few days now. The position, as per media reports, is that more than 37-38 MLAs elected on a Shiv Sena ticket have rebelled and seven plus independents and smaller parties are supporting them.
This prima facie leads to two conclusions –
1) MVA is in minority,
2) Shiv Sena has lost two-third MLAs and the splinter group cannot be struck by anti defection law under Schedule X of the Constitution.
The question now is—if those facts are clear, why is no one acting?
The answer may lie in the legal rigmarole.
The Shinde group can form a separate legislative group so that they can vote inside the assembly as per will without attracting the anti-defection law. They can also move to take claim as the ‘official’ Shiv Sena.
However, the second option involves a long drawn process where the EC comes into the picture, and is immaterial to the government change immediately. Further, the Shinde camp may not take a weeks-long route, lest the rebellion fizzles out. Therefore, option 1 is the appropriate, immediate answer – act on their will without attracting anti-defection law.
The Uddhav group has its own options, being the original party incumbent. It may move the Deputy Speaker to seek disqualification of the rebels. (They called for a party meeting guised as a whip and also may be seeking disqualification part by part as per news reports.)
However, the only problem is disqualification may be dicey – without disobedience to a whip inside the assembly, it may be difficult to legally sustain a flimsy disqualification.
The BJP may request the Governor to call for a floor test since the Maha Vikas Aghadi (MVA) appears to have lost majority, and the Governor may also oblige, as the Supreme Court allowed in the Shivraj Singh Chouhan case. The floor test can successfully lead to dismissal of the government.
However, it will create a small hiccup – the rebels will have defied the official Shiv Sena whip in voting the no confidence motion. Essentially, they would have self-destructed, since the Deputy Speaker will act swiftly to disqualify them and BJP may not have the numbers in a reduced assembly to form the government or even if it does, it may not want to go down an uncertain route.
(Shinde is writing to the Deputy Speaker that he cannot be removed as Chief Whip since his removers do not have sanctity of the legislative group or the party itself; but this will again go down the route of finding who is to take control of the party, which at present is legally vague and a non-starter).
The simplest answer that comes to mind is that the Shinde group gets recognition as a separate legislative group and anti-defection does not apply.
However, that has a big obstacle – an NCP politician as Deputy Speaker. Taking cue from the Karnataka judgement, he may delay giving Shinde group recognition since there is no time limit for the Deputy Speaker to decide.
Hence, the answer to the quagmire lies in the office of the Speaker-Deputy Speaker. The BJP-Shinde combine would have to use their numbers to cut out the MVA bias from these offices.
It now appears that two independent MLAs have already filed a petition that the Deputy Speaker does not inspire confidence of the assembly anymore. Purportedly, this is in a bid to pre-empt any further decisions by the Deputy Speaker against the Shinde group after Deputy Speaker removed Shinde as Chief Whip of Shiv Sena’s request.
All in all, the rumblings of a stonewalling Deputy Speaker are starting to unfold. If the Deputy Speaker is indeed removed from his post, then most likely a petition from the Shinde group will lie to the empty Speaker-Deputy Speaker office to recognize them as a separate legislative group. Similarly, a petition will lie to the empty Speaker-Deputy Speaker office from the Uddhav Sena to disqualify the rebels.
BJP can get a new speaker elected thereafter, who can recognise the Shinde group as a legitimate legislative group, separate from the official Shiv Sena, since they can satisfy the ‘two-third criterion’.
Almost all of these steps will be challenged in courts, but having their basis in the Speaker/Deputy Speaker’s reasonable judgement of the situation, will appear Constitutionally sound and sustainable, and may pass muster of the courts.
Therefore, the endgame may lie through a shadow boxing in a Deputy Speaker dismissal and a new speaker election for a smooth no-confidence and formation of a new government if BJP and the Shinde group are to pull it through together.
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