Maharashtra: 'Skipping meet no ground for disqualification'

MUMBAI: The political drama unfolding in Maharashtra now has legal experts divided too on whether disqualification can be sought for the ‘rebels’ in Shiv Sena. However, most are in agreement that the MLAs cannot be disqualified on grounds of not attending recent party meetings as that is outside the ambit of legislative affairs. The party’s petition to the deputy speaker seeking disqualification of 16 MLAs including rebel leader Eknath Shinde has sought to invoke para 2 (1) (a) of the 10th Schedule of the Indian Constitution, which governs ‘disqualification on grounds of defection’.

A counsel said the party may be relying on a 2019 SC order in a Karnataka case to argue that the actions of the MLAs would “portray defection.” The Sena plea is that at a “crucial time” during “uncertainty” when the party needed to consolidate, meetings were called on June 21-22 and despite notices, these MLAs did not attend and instead left for Surat and Guwahati.

The plea said BJP, in a conspiracy with these MLAs, is trying to topple the government and in these circumstances, their not attending the meetings amounted to voluntarily giving up membership of the party; remaining incommunicado and not responding to the call of the brass also shows that they have given up membership and hence they should be disqualified, it said.

However, former attorney general S G Aney said the disqualification process would be “void” legally as not attending the meetings would not amount to quitting the party. Lack of attendance at meetings “cannot be taken into the realm of legislature’s action and the speaker has no authority over the matter. At best it would be a matter for the party’s internal consideration for consequences on such unbecoming behavior,” said Aney.

Anil Sakhare, a senior counsel, also agreed that at this juncture it may not attract disqualification.

Senior counsel Prasad Dhakephalkar said the situation is “still very fluid” but if by their conduct it can be shown that they have left the party, then it may attract disqualification. “But rebels can claim merger,” he added. To overcome any threat of disqualification they have to show 2/3rd members of a party have merged with another party.

Under the 10th Schedule paragraph 4, disqualification on grounds of defection would not apply in case of a merger with another party. “It will eventually depend on the facts which at the moment are not all clear,” said another senior counsel from Delhi. He added, “At this stage prima facie, there can be no disqualifications since not attending the meeting does not amount to voluntarily giving up the membership of the party. It would depend on the explanation that the member may give. A party cannot single out a few members if there is support of two-third members in the rebel faction. The Karnataka case was different on facts.”

“At the party level, you can take action. They have been representing their constituencies. But when they say they have two-third members on their side, they effectively have secured protection to not be disqualified and be termed as people who ought to be disqualified,” said Aney.