Goa is a factory for defections and mergers. We have seen it all. We (our esteemed MLAs) started defecting when there was no bar on defections. Then came the rule about the minimum requirement of one-thirds MLAs for defections. Our politicians started consistently achieving this goal leading to toppling bids periodically. Then came the provision for the minimum requirement of two-thirds MLAs for defections and mergers. Goan MLAs are heading towards this goal too, of late. They have mastered the art of voluntarily resigning from the party and the Assembly, and they even get re-elected.
When the Maharashtra political potboiler commenced it was an intriguing exercise for the lawyers and journalists in Goa. Here is a classic case where two-thirds of MLAs have come together to topple a government, their government, unwilling to defect, form a separate group or merge with another political party. They have issued their whip. A single party has issued two whips; first by the president of the Shiv Sena who has got the party organisational structure with him and second by the leader of the two-thirds MLAs who though have not split away have positioned themselves as rebels within the party. Let us now see what the 10th Schedule says about the “whip” or the “directions” of the party.
Clause 2(b) speaks about the disqualification on the ground of defection: if he (MLA) votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs, or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
So which whip or direction is legitimate?
A “whip” is recognised by the speaker of the house. During the election of the Speaker, the Deputy Speaker presiding over the proceedings of the House has categorically noted that most of the Sena MLAs have voted against the directions/whip of the party. This is a clear recognition of the “whip” issued by the Uddhav Thackeray camp. However, the Speaker after his election recognised the other “whip”.
Interestingly, the letter of removal of Eknath Shinde from the Shiv Sena states two important aspects. 1. That Shinde has voluntarily given up his membership of the party. 2. As an effect, he has been removed as leader of Shiv Sena. Although everyone went gaga over the second point, the first point is the most crucial. It effectively states that Eknath Shinde is no longer a member of Shiv Sena, which means, in technical terms, could only mean that he is an "unattached MLA" (as per Uddhav Thackeray's Shiv Sena letter). However, Sena has chosen not to take similar action against the rest of the MLAs. It has moved the Supreme Court against the recognition of the Shinde group “whip” by the Speaker.
There is a complete mystification over the concept of the whip in this case. Eknath Shinde has two-thirds MLAs but he has not split from the party. So the question of the legislative party being recognised as a separate political entity does not arise in this case. However, Shinde has demonstrated his strength in numbers and has claimed that he has an absolute right to issue the whip as head of the legislature party. In reality, now, there are two Shiv Sena whips pitted against each other. Both the factions are claiming to be the voice of the political party. Which voice is the legitimate voice? The apex court needs to decide.
In Goa, when the two-thirds MLAs of the Indian National Congress split, created a separate faction and merged it into the BJP, the Congress party claimed that it is absurd to say that 10 MLAs have merged the Indian National Congress into the BJP. When the matter reached the high court the order states: We are of the opinion that split of a political party as contemplated under paragraph 3 of the Schedule, as it existed, and merger of the original political party with another political party as contemplated under paragraph 4 of the Schedule are distinct concepts, not to be confused with each other.
However, in the case of Maharashtra, the Shinde faction of the Shiv Sena has two-thirds MLAs but there is no split. So effectively they are a part of a homogenous entity called Shiv Sena. So the question of my whip vs your whip or political party's whip vs legislature party's whip remains entangled in complexities.
After a lot of legislative and political tribulations, people in Goa have realised that most of these issues stem from one fundamental flaw. Most of these decisions remain with the Speaker or in some grave matters the Governor. In both cases, both the individuals being political appointees at least in present times, the decision-making process is mostly skewed and often lands up at the doorstep of constitutional courts. Most of the time, in case of matters like disqualification petitions, speakers delay the deliverance of a verdict till the tenure of that sitting assembly comes to an end. Even if a decision is challenged in the court of law, by the time a court rules over it, fresh elections are held and a new assembly is constituted rendering the case infructuous. The exercise remains largely academic and probably applicable to such scenarios in the future.
There is only one way to decide these matters swiftly and diligently. The direct political imprint on these proceedings should be removed and such matters should be heard and decided on a fast-track basis either by the respective high courts. Then and only then, these matters would not be mere academic exercises carried out by the affected parties to satisfy their constitutional doubts.
Before we conclude here is the last tangle of the Maharashtra scenario. The Deputy Speaker of the House has indirectly recognised Uddhav Thackeray's Sena as the political party, the Speaker has upheld Eknath Shinde's rebel MLAs within the Sena as political party. Therefore the clarity over the issue of Sena's whip remains a controversy that only the courts empowered by the law could interpret and decide.
The battle has just begun.
(The writer is a senior journalist and columnist, and the Editor of Prudent Media, Goa. He tweets at @PramodGoa)
