What is the role of the Governor in the power struggle in Maharashtra? MIGMG News



There is a picture of inevitable court battle over the political upheaval in Maharashtra. While there are many serious problems in the state today, it is unfortunate that the time has come to fight such a court battle, in which ordinary citizens will be involved. Uday Varunjikar This article deals with the many dramatic events that have taken place in the last 48 hours and the unprecedented situation that has arisen in Maharashtra. Seeing this situation, various questions are coming up in the minds of the people. Against this background, it would be reasonable to reflect on the procedure adopted by the Maharashtra Legislative Assembly, legal provisions, principles of the Constitution, etc. In view of the provisions of the Indian Constitution, especially under Article 170, there is a provision regarding the composition of the Legislative Assembly. Assembly; The provision also clarifies how the entire functioning of the Legislative Council should be conducted. Chapter Three of the Constitution-1950 contains provisions regarding the Legislature. Considering the political developments of the last two days, the consideration of Article 174 (2) (b) will be important. It provides for the term of the Legislative Assembly. The provision in Article 174 (2) empowers the Governor to dissolve the Legislative Assembly. This provision has been amended long ago. Accordingly, there are no conditions or restrictions on the governor’s powers to dissolve the legislature. Interpreting the provisions of this article, the Supreme Court has stated that there is no fundamental right to dissolve the Legislative Assembly. He also said that the governor should act on the advice of the chief minister. With this in mind, the immersion will not take place unless the Chief Minister advises the Governor. Under Article 163 of the Constitution, the State Cabinet is expected to assist and advise the Governor; However, given the situation in the state over the last two days, the Cabinet is not in a position to provide assistance and advice to the Governor. The no-confidence motion or resignation against the present Chief Minister Uddhav Thackeray will happen in the future. Until a decision is made on who is the current head of the Shiv Sena Legislative Party, it is difficult to see the next legal picture. Till date, the legal issue regarding Shiv Sena has not reached the court. Given the current politics, this question is more likely to reach the courts. That is, in the current situation, even if the governor dissolves the assembly, it can be challenged in court. The decision of dissolution by the Governor is then likely to be legally debated in the High Court and / or the Supreme Court, and the appropriate decision is likely to be reached. In other words, it is not easy to dissolve the assembly directly and it will be subject to the decision of the Supreme Court or the Mumbai High Court. Because of this, who is the current leader of Shiv Sena’s Legislative Party? Newly appointed leader of Shiv Sena by making changes in it, or leader appointed by the rebellious MLAs by signing a resolution? Which leader was officially registered by the Legislative Assembly? In the meeting in which it was decided to change the leader of the Legislative Party, was it right or wrong? Was there an agenda for the meeting? Does the person calling the meeting have such rights? There are many such questions. Another important question is, if such a large number of Shiv Sena MLAs have revolted, will the ban on defection be applied to them? There is a provision in the Constitution that the Legislative Party should have two-thirds of the members. If the membership is less than two-thirds and those members decide to join another political party, it is called defection. The amendment made in the Constitution has been included in the tenth list. Accordingly, if two-thirds of the members wish to merge with another political party, they cannot be disqualified on the ground of transfer ban. This two-thirds ratio is intended to bring stability to the government. At present Shiv Sena has 55 MLAs in the Assembly. The most important question is whether two thirds of the 36 MLAs are with Eknath Shinde. If there are no more than two-thirds of the members, the rebellious members may be disqualified. The issue of disqualification of a member due to defection cannot go to court. When it comes to the issue of disqualification of members, the decision of the Speaker of the House is very important. There is a provision that the decision will be final. With this in mind, the Assembly was expected to be led by the Speaker of the House; However, the election of the Speaker of the Legislative Assembly has not been held till date. A vice president has been elected. Pursuant to Article 187, he may act as the Deputy Speaker of the Legislative Assembly. If there is a dispute over who is the original political party or who is the leader of that original political party or whether it is a transgender group, those issues will be handled by the Vice President. Even then, legal disputes can arise. On the other hand, the key question is who will rule the Shiv Sena. On the one hand, the current Chief Minister Uddhav Thackeray claims to be leading the original political party, while on the other hand, Eknath Shinde claims that he has the power of the political party; But these are two different concepts. There are two types of political parties in the legislature. The original political party can be led by a person other than the head of the Legislative Party. The head of the Legislative Party is elected by all elected members; Therefore, the vice president will have to decide whether the resolution signed by some members of Shiv Sena and the legislature has changed the party leader in a proper manner and his decision will have to be approved by the governor. The governor’s decision could be challenged in court in the near future. Is the expulsion of Shiv Sena legislature party chief Eknath Shinde legal or illegal? Has proper procedure been followed in this regard? Was there an agenda in the meeting of the members or not? Was there a required quorum in that meeting or not? Even so, owning one is still beyond the reach of the average person. On the whole, the political upheaval that has taken place in Maharashtra is followed by a political battle followed by a court battle. With so many serious and important issues looming in the state today, it is unfortunate that the time has come to fight such a court battle, in which ordinary citizens will be the ones to get involved. (The author is a lawyer and jurist in the Mumbai High Court.)



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