The Madras High Court will on Wednesday Sep 20,2017 hear the plea of 18 disqualified AIADMK MLAs who owed allegiance to the former party leader, TTV Dinakaran. The Tamil Nadu Assembly Speaker P Dhanapal on Monday, disqualified them under ‘The Members of the Tamil Nadu Legislative Assembly (Disqualification Grounds of Defection) Rules, 1986’ formed in accordance with the Tenth Schedule (Articles 102 (2) and 191 (2)) of the Constitution.
The 18 MLAs had refused to support Chief Minister K Palaniswami and revolted against him last month. The MLAs filed a plea with the Madras HC questioning the validity of the Speaker’s decision
The case has opened a Pandora’s Box of legal questions that the court will have to delve into. Some of these questions are pertinent as the court will now have to walk a fine line to determine whether a leader of a party can be treated as an individual or the entire party by himself.
Moreover, it will also have to be looked at that if the party members express dissatisfaction with their leader, will they still remain members of the organization.
In an attempt to decode all of these issues, News18 speaks to PDT Acharya, Former Secretary General of the 14th Lok Sabha and 15th Lok Sabha and also the former Lok Sabha Secretariat.
Was Speaker P Dhanapal justified in disqualifying the 18 MLAs just because they have asked for the dismissal of the chief minister?
As far as the Constitutional position is concerned, the Speaker has the power to disqualify the members on grounds that they have voluntarily given up membership of the party.
Now, voluntarily giving up of membership is liable to be interpreted in different ways. It is not a question of resignation but a voluntary action and is related to their conduct. This is what has been decided by the Supreme Court in a number of cases. If the Speaker is convinced that their conduct is such that it counts as giving up the party membership, although they have not resigned formally, then there are grounds to disqualify them and this is the Constitutional precedent.
Now, in Tamil Nadu’s context, whether the conduct of these 18 MLAs asking the Governor to dismiss their leader K Palaniswami amounts to giving up membership or not. This is the crucial question which has to be answered by the court on Monday.
What the scope of judicial review? Is the Constitution silent on the grounds to disqualify members of the house?
Removal of these 18 MLAs may be justifiable only in certain specific cases as it solely depends on the circumstances. If the Constitution had specified that the MLAs will be disqualified only if they resign from the party, the question wouldn’t have come up at all.
However, the Constitution makers chose not to address this issue so that the Speaker and the court can interpret it. The matter is open for judicial review and the Speaker’s decision can be challenged. In such cases, the court can take the final call on the validity of the order.
The other issue that has to be looked at is, whether they have been given adequate time or personal hearing to discuss the problem.
Will the Madras HC follow the precedent set by the Supreme Court?
In a 2007 case between Mayawati’s Bahujan Samaj Party leaders and Mulayam Singh Yadav’s Samajwadi Party had suggested that just the move of BSP members approaching the Governor against Mayawati, who was holding the government at the time, called for their removal from the party.
The case was fought between Rajendra Singh Rana and Swamy Prasad Maurya. A few BSP members went up to the Governor along with some of Mulayam’s party members (who were in the opposition) and asked for dissolving the government. The rebel party members even requested the Governor to swear-in Mulayam Singh Yadav as the Chief Minister.
The SC said that based on the fact that they had met the Governor and asked for the dismissal of the government amounts to voluntarily giving up the membership of the party and thus disqualification is justified.
This is a precedent that strengthens the position of the Speaker.
What will the lawyer of these 18 AIADMK MLAs argue in court? How will the fine line of the difference of not revolting against the party and only the leader be explained?
The lawyers for the 18 MLAs can always say that they have not voluntarily given up their memberships or spoken against the party or indulged in anti-party activities and that they have only expressed their no-confidence in the chief minister, who is an individual and is incidentally leading the government.
There can be another chief minister, in whom, they would show absolute faith. Now, whether the courts should chalk out a difference between the leader as an individual and as the one representing the party, is a call that the court will have to take.
Is a fresh floor test for Palaniswami on the cards now?
Acharya believes the anti-defection laws are often misused. In such cases, the MLAs usually visit the Governor and tell him that they have withdrawn support from the government and that this action will reduce the government to a minority.
So, the Governor should ideally ask the chief minister to prove his majority in the floor of the house.
Acharya cites a 2011 example, when in Karnataka, Chief Minister B S Yeddyurappa lost his majority when some of his MLAs revolted against him and the Governor asked him to take a floor test. Yeddyurappa had petitioned the Speaker and requested him to disqualify these members. The disqualification of the members was struck down by the Supreme Court. But the primarily the fact remains that the anti-defection law is often misused by the ruling parties and Speakers.
Ousted AIADMK leader TTV Dinakaran on September 18 claimed that the legislators supporting him would not have been disqualified, had Governor Vidyasagar Rao acted quickly on their plea against Chief Minister K Palaniswami. “Since the Governor caused an unnecessary delay despite knowing that Palaniswami did not have the required number of 117. This is a murder of democracy,” Dinakaran claimed.
The 18 MLAs had refused to support Chief Minister K Palaniswami and revolted against him last month. The MLAs filed a plea with the Madras HC questioning the validity of the Speaker’s decision
The case has opened a Pandora’s Box of legal questions that the court will have to delve into. Some of these questions are pertinent as the court will now have to walk a fine line to determine whether a leader of a party can be treated as an individual or the entire party by himself.
Moreover, it will also have to be looked at that if the party members express dissatisfaction with their leader, will they still remain members of the organization.
In an attempt to decode all of these issues, News18 speaks to PDT Acharya, Former Secretary General of the 14th Lok Sabha and 15th Lok Sabha and also the former Lok Sabha Secretariat.
Was Speaker P Dhanapal justified in disqualifying the 18 MLAs just because they have asked for the dismissal of the chief minister?
As far as the Constitutional position is concerned, the Speaker has the power to disqualify the members on grounds that they have voluntarily given up membership of the party.
Now, voluntarily giving up of membership is liable to be interpreted in different ways. It is not a question of resignation but a voluntary action and is related to their conduct. This is what has been decided by the Supreme Court in a number of cases. If the Speaker is convinced that their conduct is such that it counts as giving up the party membership, although they have not resigned formally, then there are grounds to disqualify them and this is the Constitutional precedent.
Now, in Tamil Nadu’s context, whether the conduct of these 18 MLAs asking the Governor to dismiss their leader K Palaniswami amounts to giving up membership or not. This is the crucial question which has to be answered by the court on Monday.
What the scope of judicial review? Is the Constitution silent on the grounds to disqualify members of the house?
Removal of these 18 MLAs may be justifiable only in certain specific cases as it solely depends on the circumstances. If the Constitution had specified that the MLAs will be disqualified only if they resign from the party, the question wouldn’t have come up at all.
However, the Constitution makers chose not to address this issue so that the Speaker and the court can interpret it. The matter is open for judicial review and the Speaker’s decision can be challenged. In such cases, the court can take the final call on the validity of the order.
The other issue that has to be looked at is, whether they have been given adequate time or personal hearing to discuss the problem.
Will the Madras HC follow the precedent set by the Supreme Court?
In a 2007 case between Mayawati’s Bahujan Samaj Party leaders and Mulayam Singh Yadav’s Samajwadi Party had suggested that just the move of BSP members approaching the Governor against Mayawati, who was holding the government at the time, called for their removal from the party.
The case was fought between Rajendra Singh Rana and Swamy Prasad Maurya. A few BSP members went up to the Governor along with some of Mulayam’s party members (who were in the opposition) and asked for dissolving the government. The rebel party members even requested the Governor to swear-in Mulayam Singh Yadav as the Chief Minister.
The SC said that based on the fact that they had met the Governor and asked for the dismissal of the government amounts to voluntarily giving up the membership of the party and thus disqualification is justified.
This is a precedent that strengthens the position of the Speaker.
What will the lawyer of these 18 AIADMK MLAs argue in court? How will the fine line of the difference of not revolting against the party and only the leader be explained?
The lawyers for the 18 MLAs can always say that they have not voluntarily given up their memberships or spoken against the party or indulged in anti-party activities and that they have only expressed their no-confidence in the chief minister, who is an individual and is incidentally leading the government.
There can be another chief minister, in whom, they would show absolute faith. Now, whether the courts should chalk out a difference between the leader as an individual and as the one representing the party, is a call that the court will have to take.
Is a fresh floor test for Palaniswami on the cards now?
Acharya believes the anti-defection laws are often misused. In such cases, the MLAs usually visit the Governor and tell him that they have withdrawn support from the government and that this action will reduce the government to a minority.
So, the Governor should ideally ask the chief minister to prove his majority in the floor of the house.
Acharya cites a 2011 example, when in Karnataka, Chief Minister B S Yeddyurappa lost his majority when some of his MLAs revolted against him and the Governor asked him to take a floor test. Yeddyurappa had petitioned the Speaker and requested him to disqualify these members. The disqualification of the members was struck down by the Supreme Court. But the primarily the fact remains that the anti-defection law is often misused by the ruling parties and Speakers.
Ousted AIADMK leader TTV Dinakaran on September 18 claimed that the legislators supporting him would not have been disqualified, had Governor Vidyasagar Rao acted quickly on their plea against Chief Minister K Palaniswami. “Since the Governor caused an unnecessary delay despite knowing that Palaniswami did not have the required number of 117. This is a murder of democracy,” Dinakaran claimed.
No comments:
Post a Comment