In this interview to The Leaflet, Achary explains the issues involved in the latest political crisis in Maharashtra, triggered by the revolt of some Shiv Sena Members of Legislative Assembly (‘MLAs’) against their party leader and the state’s Chief Minister, Uddhav Thackeray.
Q: You have written a very insightfularticle in the last Sunday Times of India on the prevailing anti-defection myths and the much talked-about magic number, required for a break-away group of a political party to escape disqualification on the ground of defection. After the split provision in our anti-defection law was scrapped in 2003, and the merger provision remained, there has been a lot of confusion about the ‘deemed’ provision in paragraph 4(2) of the Tenth Schedule of the Constitution. How do you interpret that? The Bombay High Court, in a recent case in February, has clearly said that if sub-paragraph (2) of paragraph 4 has to be given logical effect, a break-away group with two-thirds support of the parent legislature party agreeing to merger with another party, should not be disqualified on the ground of defection. Why do you think the high court’s judgment in this case is least convincing?
A: I disagree with that judgment. According to me, that judgment is not in line with the provisions of the Constitution. In fact, it goes against that, and it also needlessly complicates the operation of this law. According to the law, a member of the legislature can be exempted from disqualification only if two conditions are fulfilled. One is when her original political party merges with another party. And then two-thirds of the legislators of the party – to which the legislator belongs to – agree to that merger.
That means the original decision to merge can be taken only by the original political party. That is the scheme of this particular paragraph.
The question is what happens if two-thirds of the members of the legislature party agree to the merger. Once the original political party merges with another, it means that the parent party ceases to exist.
So what happens to the one-third members of the legislature party who disagree with the merger? They have to be given a proper legal standing, and that is why this paragraph says that they can form a separate group that would be recognized. And that group will be the original political party of that group for the purposes of anti-defection law.
So that makes it very clear, but the high court’s order creates needless complication.
The two-third members of the legislature party, who break-away from the remaining one-third, have to merge with another party. Only then, they will get protection (from disqualification). Otherwise, they will not. So they can merge with another party and they will be known by the name of that party. Or they can form another party along with the other party, a third party, which can be given a new name. That is possible. But they have to merge.
Q: In the meantime, the deputy speaker of the Maharashtra assembly has issued notice to 15 of the Shiv Sena’s rebel MLAs, asking why they could not be disqualified under the Tenth Schedule. These rebels have gone to the Supreme Court. On June 27, the Supreme Court gave them relief by extending the Speaker’s deadline of seven days till July 11. How do you interpret these developments?
A: Under the anti-defection rules, the maximum time that is given by the Speaker (to respond to a notice) is seven days. Only the Speaker can give time and if need be, the Speaker can extend the time. The point is that only the Speaker and no other authority can intervene and fix the time for the Speaker. I mean, on behalf of the Speaker. In this case, the Deputy Speaker can discharge the duties of the Speaker, when the latter’s office is vacant. (The Maharashtra Assembly Speaker’s post has been vacant since February, when [last Speaker of the Assembly] Nana Patole resigned from the post, in order to assume the post of the state Congress president)
I do not know on what basis the Supreme Court has given them (the rebels) time till July 12.
Q: We were listening to the proceedings in the Supreme Court on June 27 and what weighed with them was that since there is a pending notice for the removal of the Deputy Speaker, he cannot decide about his own removal.
A: Under the rules, this notice needs to be admitted. Now, who will admit it? It is again, the Deputy Speaker. That is the first stage. The rule says that there shall be a charge, a specific charge. That is the main thing. There has to be a specific charge and the Deputy Speaker or the Speaker, against whom the notice has been given, has the right to decide the admissibility of this notice.
Now, so far as the question about one being a judge in her own cause, that doesn’t arise here, because a decision is taken by the House on the merits of the question. It is not Deputy Speaker who is sought to be removed who decides the matter on merits.
The two-third members of the legislature party, who break-away from the remaining one-third, have to merge with another party. Only then, they will get protection (from disqualification).
Even if there is a motion pending against him, the Speaker (or the Deputy Speaker) has no constitutional or legal disability merely because the notice has been given. It is the Speaker alone who is recognized by the rules as the authority, which admits the notice. The Deputy Speaker has not admitted the motion on the ground that the motion has been sent by an unauthorised person whose email is not registered. Not only is he not disabled from doing so but he is under a duty to decide on the admissibility of the motion.
Q: It is in the facts of this case that the Deputy Speaker has said that he cannot vouch for the authenticity of this notice because it has originated from an unregistered email address. So what he actually asked for is authentication and verification. What is your comment on that?
A: That’s quite okay. That means there is no motion pending against the Deputy Speaker. Therefore, Nabam Rebia has no application in this case. (In Nabam Rebia, a Constitution bench of the Supreme Court held in 2016 that if there is a motion for the removal of the Speaker pending before the House, the same Speaker cannot decide the question of disqualification of members under the Tenth Schedule, unless the pending motion for her removal is decided first).
This is a different situation. There is no motion for removal of the Deputy Speaker pending in the House.
Q: You were earlier of the view that a Speaker can only be disqualified or removed for his conduct in the House. Can you please clarify that?
A: The Speaker is the presiding officer of the House. He has no role outside the House. He presides over the House. So his conduct would be judged on the basis of his conduct in the House. You cannot, for example, move a no-confidence motion on the ground that the speaker has gone out and married a second time.
That is not all. You have to judge him on the basis of his performance in the house. Speaker is an impartial umpire. He has to deal with all sections of the House with an even hand. Therefore, if you find that the Speaker has deviated from that, then of course you can move a no-confidence motion against him. But the rule requires that the motion should contain very specific allegations against the Speaker, that is, how he went against the rules.
Q: And that has not been done in the present case (against the Deputy Speaker)
Q: Your main argument is that there is no motion pending, which has been admitted for the removal of the Speaker by the Speaker (or the Deputy Speaker) or on a decision by the House. Secondly, the question of being a judge in his own case does not arise because the decision on that motion will be taken by the House and not by the Speaker (or the Deputy Speaker). And if a Speaker (or a Deputy Speaker) unreasonably refuses to admit a motion, though it is accurate in all respects, a judicial review is unlikely because the court has no jurisdiction on matters of the House.
A: Yes, they can claim the privilege
Q: The question still remains whether any court of law has the jurisdiction to interfere with the functioning of the Deputy Speaker.
A: That is the most relevant question here at this stage. The court has no jurisdiction because this has been made clear – absolutely clear – by the Supreme Court itself. The court doesn’t intervene at this stage prior to the decision by the Speaker because the Speaker is the first tribunal. He has to decide this issue. Only after that, they can get it reviewed by the higher courts. So at this stage, no court has any jurisdiction to intervene.
… a notice of no-confidence against the Deputy Speaker cannot be given at this time because the House is not in session. When the House has not been called, notice cannot be issued. So this is out of the question. That is, this can be rejected outright. Only after the House meets, notices can be given.
Q: What is your view on the status of these 37 MLAs who are considered as rebels of Shiv Sena?
A: When the house meets, then we will know. Suppose the Governor says you call the meeting of the House and prove your majority. Then the Chief Minister has to do it. Suppose the House meets and then they move a confidence motion. And it’s a fair guess that all these rebels will vote against that motion, though they are still members of Shiv Sena.
Q: Can it not be said that they have voluntarily given up membership of the party? How would you answer that?
A: I tend to agree with you because it is the conduct of the members that is crucial to the decision on this issue. Now, if the party leadership thinks that by joining the opposition party, seeking its help, and their conduct throughout shows that they have voluntarily given up the membership of the party, it has the right to conclude that way. And on that basis, it can give a notice. And I think and I presume that that is the ground on which it has given this notice.
Q: The fact is that at the present moment, they have given notice to only 15 of them, but in law, they will be within their rights to give notice to all the 37 of them.
Q: Let us assume the notice to remove the Deputy Speaker is taken up first, and that the current Deputy Speaker can’t disqualify these rebels; what happens in such a situation?
A: There are one or two things we should understand. One is that a notice of no-confidence against the Deputy Speaker cannot be given at this time because the House is not in session. When the House has not been called, notice cannot be issued. So this is out of the question. That is, this can be rejected outright. Only after the House meets, notices can be given. Motion has no meaning at this stage.
Now, suppose the House meets, and they give a notice. But it can be taken up only after 14 days. There is a 14-days gap (which is mandatory). You know, the Constitution itself provides that after giving the notice, there has to be a gap of 14 days after that. It can be taken up. That is one thing.
Secondly, to answer your question, what will happen if the notice is pending against the Deputy Speaker? You cannot decide obviously because of the Nabam Rebia decision. The Deputy Speaker will be disabled, actually. He can’t decide these questions.
And then what will happen is – it is not very clear from the legal provisions or the Constitutional provisions, but I can make a guess – that if the Speaker’s office is vacant and the Deputy Speaker’s office is also vacant, then the powers of the Speaker will be conferred on a person from within the House, of course, by the Governor.
The Governor forms an opinion that the government has lost the majority. He has so many other sources of information that help him to form an opinion. Then the Governor can ask the Chief Minister to convene the house on such and such date. The House should be convened.
Now, in this case, the post of the Speaker is vacant. The Deputy Speaker is very much there, but after the motion is admitted, because of the operation of the Supreme Court judgment, he is disabled to decide this issue and is prevented from deciding this. This is just hypothetical at this stage, as we don’t know what is likely to happen.
Q: What, according to you, is the role of the Governor in a situation of this kind?
A: The Governor forms an opinion that the government has lost the majority. He has so many other sources of information that help him to form an opinion. Then the Governor can ask the Chief Minister to convene the House on such and such date. The House should be convened.
These days, it has become a practice for the Governor to fix the date (for convening the Assembly) himself. Otherwise, normally it is done by the Government on the recommendation of the Council of Ministers headed by the Chief Minister. That is the normal process.
Q: So would you agree that this is a rather unique situation in which neither side is willing to take that step? Both sides appear to be playing a wait and watch game. How do you analyse that situation when neither party is willing to be the first mover?
A: It appears that they’re keeping the doors open, because that is what we can get, you know, from the various statements made by the political operators. We will have discussion and we will have debate and we will do this and we will do that, that kind of thing; a little conciliatory, sometimes a little tough. Sometimes it goes like that, but it is all part of the game.
Q: What are the chances of the President’s rule being declared?
A: President’s rule is normally declared only when the Governor finds that there is no chance of any alternative government being formed.
He uses all the options. He explores all the possibilities and finds that there is no possibility of an alternative government being formed; in that case, he will recommend President’s rule, though not otherwise.
Q: But you see in a situation like this, obviously these 37 MLAs are not willing to give up their identity as Shiv Sena members. So could you explain a little bit about the procedure by which they claim to be recognized as the original party?
A: The rebels have to go to the Election Commission because that question would be decided only by it. The House will not decide. But the Election Commission will decide on the ground of the support, which each faction enjoys. Both the factions will be asked to present their evidence. So the election commission will go into all that and finally decide who has the party organization. And, of course, the members of Parliament and members of the assembly (belonging to each faction) are also important factors to be considered.
Q: The Constitution says that the proceedings in any House cannot be questioned in such a situation. Perhaps the only remedy is a political remedy and not the legal remedy. In this case, they are consciously not merging with the BJP because there are political issues. The rebels think that they will lose their identity if they merge, and they will lose everything politically. So it is almost as if they are caught between the devil and the deep sea. If they don’t merge, they are liable to be disciplined. They know it. And this is the reason why no move is being made, asking the Governor to convene the House.