Legislative assembly

Shiv Sena challenges Maharashtra governor’s invitation to Eknath Shinde to form government in Supreme Court – The Leaflet

Shiv Sena Secretary General Subhash Desai’s written petition to the Supreme Court against the formation of Eknath Shinde government in Maharashtra raises interesting issues to be resolved under the Tenth Schedule of the Constitution.

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AS Supreme Court due to reopen after summer recess on July 11, the legal implications of political upheaval in Maharashtra are likely to come under scrutiny with a new brief motion challenging the governor’s invitation to the leader rebel, Eknath Shinde, to form the government, following the resignation of Uddhav Thackeray as chief minister.

The Petition in Brief, filed by Shiv Sena (Udhav Thackeray-led) General Secretary Subhash Desai, also challenges the validity of the election of the new president, Rahul Narwekar, and his subsequent recognition of Bharat Gogawale as whip in leader of the Shiv Sena, in place of Sunil Prabhu. Gogawale was appointed chief whip by the rebel faction, while Prabhu was Thackeray’s nominee.

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With the Shinde government winning the vote of confidence in the July 4 state assembly floor test, attention has now turned to the status of new disqualification petitions filed against 39 ‘delinquent MPs’. (as the rebels are described in Desai’s petition) by Shiv Sena, who openly challenged the whip launched July 2 by Prabhu to vote against the confidence motion.

The disqualification of the 39 MPs was sought under Section 2(1)(b) of the Tenth Schedule to the Constitution.

Sena’s previous petitions to the Supreme Court

Earlier, on June 23, Prabhu filed motions for disqualification against 16 “delinquent MPs” from Shiv Sena for anti-party activities. The formation of the benches of vacancies of the Supreme Court extended from June 27 to July 12 the deadline granted by the vice-president of the Assembly to the 16 deputies to submit their written observations on the requests.

The Shinde faction does not appear to have any support beyond the Maharashtra assembly, and therefore its claim to be the real Shiv Sena appears doubtful, based on past Election Commission rulings.

Prabhu then filed another motion for disqualification on June 27 against 22 other “offending” MPs, who through their conduct “voluntarily renounced membership in the Shiv Sena”, bringing the total to 38 MPs.

Desai’s motion argues that the governor, Bhagat Singh Koshyari, paid no attention to the fact that Shinde’s membership in the assembly was clouded by the impending motion for disqualification pending against him, and swore so Chief Minister, in excessive and extreme haste in June. 30.

Read also: Eknath Shinde faction cannot claim Tenth Annex immunity by impersonating the real Shiv Sena : PDT Achary

Treating Shinde’s anti-party activities as tantamount to renouncing Shiv Sena membership, Thackeray removed him as party leader on July 1. On the same day, the secretary of the Shiv Sena sent a letter to the election commission urging it to remove Shinde as party leader and change the organizational structure of the party accordingly.

The quick decision to approach the Election Commission is due to the fact that only the Election Commission can decide who the original Shiv Sena is – in the event of a split in the organizational and legislative wings of the party. In the past, the Electoral Commission tended to recognize the faction that enjoyed overwhelming majority support, both among the legislative and organizational wings of the party, in the event of a split.

The Shinde faction does not appear to have any support beyond the Maharashtra assembly, and therefore its claim to be the real Shiv Sena appears doubtful, based on past Election Commission rulings.

New motions for disqualification

On July 1, Prabhu filed a request as part of the written motion he filed in the Supreme Court for an interim order suspending the delinquent MPs until the final judgment of the Tenth Schedule proceedings against them. The Supreme Court ordered that this claim be listed with the petition on July 11.

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Desai’s petition mentions the fact that on July 3, during the presidential election, the vice president – who led the elections – recorded that 39 delinquent MPs from the Shiv Sena Legislature Party (SSLP) led by Shinde had voted. against the party whip.

On July 3 itself, a new disqualification procedure was initiated against the defaulting MPs pursuant to paragraph 2(1)(b) of the Tenth Schedule.

Interestingly, on July 3, some MPs from Shiv Sena (Thackeray faction) submitted a notice to the Principal Secretary of the Maharashtra assembly to propose a resolution to remove Narwekar from the post of Speaker under Article 179 (c ) of the Constitution read with Rule 11 of the Rules of the Legislative Assembly of Maharashtra.

On July 4, Prabhu challenged the President’s recognition, granted on July 3, to the whip issued by rebel MPs led by Shinde recognizing Gogawale as the Chief Whip and Shinde as the leader of the SSLP. The Supreme Court ordered that this motion be entered in brief with other related cases on July 11.

Desai’s Petition Crux

In his petition, Desai argued that even assuming that delinquent MPs made up 2/3 of the Legislative Party‘s membership, paragraph 4 of the Tenth Schedule – dealing with the merger exception – does not is not attracted at all.

“The recognition of Shiv Sena and his leadership by Uddhav Thackeray has been approved by the Election Commission and there have been no disputes or challenges before the relevant authority as of June 30, Desai’s petition opposes.

The Governor, in his ipsi said, guided by his political masters, acted dishonestly and in defiance of the provisions of the Constitution, granted de facto recognition to the 39 rebel MPs by inviting Respondent No. 4 (Shinde) to be the Chief Minister, according to the Desai’s petition.

The discretion constitutionally given to the governor for the purpose of forming the government or inviting someone to serve as chief minister is not absolute discretion, according to the petition.

The discretion constitutionally given to the governor for the purpose of forming the government or inviting someone to serve as chief minister is not absolute discretion, according to the petition. The Governor’s discretion in this regard must be exercised on the basis of the relevant evidence, he asserts.

“Relevant evidence cannot take into account illegally cobbled together numbers that are not constitutionally sanctioned and that derail the very system of party democracy that is the bedrock of our constitutional democracy and is protected by the Tenth Schedule,” the petition further supports.

Desai’s motion further argues that the Governor’s actions here challenged violate section 164(1-B). The passage of a formal disqualification order does not postpone the disqualification date to the passage of the disqualification order. “Respondent #4 (Shinde) was already subject to disqualification on June 30. This relevant factor could not have been ignored or discounted by the Governor when he made the decision to invite the Respondent No. 4 to form the government”, pleads the petition.

Desai’s petition claims that the Shiv Sena had issued a whip for the presidential election held on July 3. Defying the whip issued by the Shiv Sena, on the strength of the 39 MPs, against whom disqualification petitions are already pending, an illegal election for the Speaker of the Maharashtra Legislative Assembly was held on July 3 and the candidate Shiv Sena official was beaten, he said.

“The President was elected with an electorate consisting of 39 Shiv Sena MPs against whom motions for disqualification are pending for violation of Section 2(1)(a) of the Tenth Schedule. These members are also in direct violation of the Whip issued by the Shiv Sena and thus attract Section 2(1)(b) of the Tenth Schedule,” the petition alleged.

President’s election based on illegally obtained majority deserves to be overturned, Desai’s petition prayed.

The election of the president based on an illegally obtained majority deserves to be overturned, Desai’s petition prayed.

As the 39 deputies, against whom a recusal procedure is pending, participated in the motion of confidence on July 4, their very membership is in danger, given the breaches recognized in paragraphs 2 (1) a) and 2 (1) )(b) of the Tenth Schedule, the motion of confidence could not have been carried out, according to Desai’s request.

Desai’s petition claims that the Shiv Sena, led by Uddhav Thackeray, unequivocally ordered Ajay Chaudhary to be the leader of the SSLP and Sunil Prabhu to be the Shiv Sena whip.

Therefore, he requests that the Supreme Court, in the exercise of powers under Section 142, withdraw the motions for disqualification proceeding, particularly in view of the confusion/ambiguity unlawfully created by the President in recognizing a rebel MP (Shinde) who voluntarily renounced his Shiv Sena membership as Leader of the House and also recognized another rebel MP (Gogawale) as the Shiv Sena Whip – both in violation of clear intent of the Shiv Sena “unquestionably” led by Uddhav Thackeray.

As the Shinde faction also filed motions for disqualification against the Thackeray faction for violating its whip during the vote on the confidence motion on July 4, the president’s ruling on the rival motions will affect the hearing of the matter. by the Supreme Court.