Which one is the real Shiv Sena? – 2

The second part of the story is dismissal of the MLAs who had already sworn in, i.e. taken an oath before the Governor.

Speaker did not carry the trust of the majority members. When the speaker knows this, the speaker should resign from his post.

To not follow the whip by a MLA a non-member is not a democratic decision and it is against the freedom of the member. When the party’s line of action itself is undemocratic and it becomes the matter controversial, one cannot decide the matter by simply YES or NO.

First of all the matter is to be decided as to who represent the verdict of the people. What verdict had been given by the people in the assembly elections?

Is it the party or its member?

Do people elect a person, or a party by casting votes?

If the party, is the verdict of the people, then why the name is incorporated on the list of the Voting Machine? It can be said vice versa, as the symbol pertains to the party.

But if we take this way;

A party is proposing a person, who would authorized to act as per the principles of the party in the assembly if elected. So if the people, likes the policy of the party, the people may elect him/her who has been proposed by a party.

The policy is the part and parcel of the principles of a party. Change in policy, if the same has not been processed properly, and that too not in a democratic way, the person who received the verdict of the people is entitled to act as per the original policy. Because the people had elected him on that Ground. Further, the party has not asked the person’s opinion or his desire before making change in the policy.

Thus neither the dismissal of a person from its party nor the dismissal from the assembly- membership of the person, is possible in a democratic set up.

The judiciary is supposed to decide the matter in a whole and with a broader view in a democratic way. It is not important as to how the matter took place technically. The importance has to be given to the moral and democratic value.

Right to Call Back the people’s representative

If there is no provision of the procedure to use “the right to recall” by the people, in the Indian Constitution, it does not mean that the people can be deprived of their right to recall. There are always general principles for any procedure.

e.g. How much strength is required for a meeting?

(1) In a regular meeting, more than 20% presence is required. Why 20 % presence of Members?

20% are supposed to be out of station. 50% will have some vivid mind and or some other work or priorities than to attend the meeting. We left with 20%. If after serving a notice of the meeting to be held, less than 20% are present in the meeting the meeting has to be postponed. Meeting has to be recalled, by issuing a Notice indicating the reason the last meeting could not be held. If with this notice also, less than 20% members turn up, then this has to be recorded in the minute of the meeting. The meeting’s proceedings should be conducted even with this less than 20% presence of the members.

(2) Similar is a case with floating a tender. There are general principles of calling for the competitive rates. First of all, it has to be decided as to what exactly we want and for what purpose and for which usage. This is called specification of the item. We may also contact experts if needed. Or we may call for opinion as to what should we purchase to meet the requirement to meet with our purpose.

E.g. We may also prepare a Contract Agreement to avoid could be loss. We may also consult a lawyer. If we receive rates only from two parties, we have to extend the date of submitting tender. If thereafter also we receive only two or less tenders, we may opt for retendering or extending the date again or we can open out the tender with the discretion of the competent authority. Then market rate should be ascertained. If any officer does not follow the general condition of the tender, he/she is liable to undergo disciplinary proceedings. It was a matter of surprise as to how the judiciary did not take cognizance while giving the judgement on 2G scam of Congi..

(3) Everywhere there are general rules and special rule. Similarly in absence of special rule or prescribed rule, right to Call Back the representative of the people by the people can be availed. If 20% of voters submit on affidavit to the EC, saying that they have no faith in their representative, the Election Commissioner can call for the re-verdict as Yes/No. If the previously elected person receives majority votes in favour, then the cost should be borne by the persons who voted against in the affidavit. If majority voters votes against, then the re-election should be conducted. This way we can avail the freedom of Right to Call Back.

We can also compare the division of Congress in 1969. There the Judiciary had given its verdict in favour of Congress (Indira).

The brief story is like this:

Indira had called emergency meeting with the members who became member after she was dismissed by the Central Executive Committee of Congress. Off course she had sizable original members too.

Both the Congress were claiming for the original Congress title. Technically the Congress (O) had a control over the Congress organisation. Matter need to be decided based on the position prevailed before the status of Congress membership and the public representatives (i.e. MLA-s, MP of LS and RS of Congress who voted for the Congress party’s official candidate in the presidential election in 1969). But the judiciary gave its verdict on the basis of the public representatives elected in 1980 on Congress ticket. The judiciary stated, “In democracy the public is supreme.”

The great parliamentarian Piloo Modi remarked on the judgement, “ It is funny. If this is the line of giving judgement, then, in case in future, the judgement will FLIP-FLOP based the election result.

The case of Shiv Sena, is little different.

Here the point is about the change of policy without calling the General Body meeting, after the election results. The public had elected the representatives based on the then existed alliance. If the judiciary believes in the same principles, related with the Indira Gandhi’s Claim to be the original Congress, the Shiv Sena of Shinde should be the real Shiv Sena.  

Further the Judiciary should not deny the “right to call back” in the absence of the system in Indian Constitution. Let us hope, the judiciary is not confused.

Shirish Mohanlal Dave

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