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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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Which one is the real Shiv Sena? – 1

What is party?

Leave aside the meaning “Sena” and then discussing on “Who is real Shiv Sena”, if the party has been registered with the EC (Election Commission), then the party is supposed to have its Constitution and aim.

The aim of a political party is generally to act for the welfare of the people. The constitution of a party indicates as to how it would execute its action.

A political party is composed of its registered members and the office bears elected by the registered members under the procedure prescribed in its constitution. These office bears will act in accordance to the party’s constitution.

To incorporate any change in the policy matter, the president of the party has to call a General Body Meeting. Otherwise also to make the changes in the office bearers it has to call for General Body meeting in a regular interval as prescribed in the constitution. If the registered membership is very large, the members of every region, would elect their delegates in proportion (e.g. one delegate per 100 members) to send to the General Body meeting with its suggestions and views.

In a democratic country, all the parties are supposed to have to meet with the democratic requirements, including transparency.

By naming a party as “Sena”, the office bearers cannot function and treat the members as their soldiers. Sena does not carry a specific dictionary meaning. It is just a part to a proper noun.

What is the position of Shiv Sena?

The Shiv Sena had alliance with BJP. This was a part of its policy since long. The last election was fought by Shiv Sena as a partner of the BJP. i.e. the Shiv Sena and the BJP had not put their Candidate against each other. Further it was agreed by the Shiv Sena and BJP both to fight 50% seats of total seats of the Assembly. As a general principle and also as a natural principle, whichever party wins more seats, that party’s leader should be the CM. Here in this case, it was decided that the BJP’s leader viz. Mr. Devendra Fadanvish will be the CM of the alliance (NDA) in Maharashtra. The canvassing also done with the posters prepared on this line. This was as usual.

The Inside Story of Shiv Sena

Most leaders of Shiv Sena, by its nature, used to collect protection money (hapta Vasuli). But BJP is not with this nature. Shiv Sena leaders were not able to act with “Free Will” so far kick-back-s and protection money is concern. This was visible from the statements made by Shiv Sena leaders till Ram Mandir issue was not settled. The Shiv Sena leaders used to blame BJP by saying “BJP says ‘We will construct the temple at the same place (Babri Mosq place) but we will not tell you the date’.” This was the politics of Shiv Sena leaders, with a view to defame BJP indirectly. BJP knew this. But BJP had taken it, as political liberty of Shiv Sena.

Sharad Pawar did know this. He could see that the bonding of Shiv Sena and BJP is not very strong.

Sharad Pawar instigated Shiv Sena’s Uddhav Thakare to have post-election-alliance with his party. However Shiv Sena should not break the alliance with BJP before assembly election, so that Shiv Sena can take benefit of the alliance with BJP.

Shiv Sena might have asked to what to answer, in case a questions is raised on the Shiv Sena’s betrayal towards BJP. Sharad Pawar would have explained the whole plan to Uddhav Thakare. Otherwise also Uddhav Thakare personally was fed up with the alliance with BJP. 

As soon as the Maharashtra Assembly results were out, Uddhav Thakare as per pre-prepared fabricated story, asked BJP, that it was a pre-poll agreement in the alliance that for 2 ½ years the CM should be from Shiv Sena and for 2 ½ years it would be from the BJP. Uddhav Thakare insisted his son Aditya Thakare should be made the CM.

It was natural, that such proposal was certainly to be rejected from the end of BJP. Because the main weapon of BJP is to fight against the rule of dynasty. Hence BJP rejected it. Sharad Pawar also tempted the BJP, to have alliance with NCP. Sharad Pawar instigated Ajit Pawar of his own party to woo BJP to form the government. BJP fell in the net of Sharad Pawar. Ultimately the BJP was fooled.

After failing to form the Government, BJP has no scope to woo with Sharad Pawar again for asking his support, because Ajit Pawar of NCP had betrayed the BJP already.

We will keep all these stories aside.

What should be the position in a democratic country?

Most important point has been neglected by every learned person including the judiciary.

To change the alliance partner is a policy matter or not?

Off course, to Change the pre-poll alliance Partner, after the results are out,  is definitely a policy matter. To discuss the matter related with party’s policy in the General Body meeting is mandatory. Executive body of the party is not authorized to take decision on making the enemy as an ally and vice versa. Hence the post-election alliance, itself is undemocratic.

Judiciary should have taken SUO MOTTO. Why the judiciary has kept silence is a matter of research. The same is with the Election Commission. Because this is a betrayal with the people who gave their verdict as to who should form the Government.

(continued …)

Shirish Mohanlal Dave

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IT IS NOT BAD, BUT IT IS HURTING

“MAHATMA GANDHI BROUGHT FREEDOM” IS VERY WRONG.

Major General G. D. Bakshi has shown his terrible reactive anger on the above conclusion. He says with evidence that it was not Mahatma Gandhi who brought freedom for India but it was Subhash Chandra Bose who brought the freedom for India.

It is difficult to understand as to why does Major General G. D. Bakshi put Gandhi and Subhash against each other?

Image result for images of quit india movement

To have a difference of opinion between two persons is natural. Both the persons could be correct under their logic. Whose logic is true and whose logic was wrong depends upon a lot of prevailing factors at that time. The point is whether the persons are sincere on their thoughts and actions or not? Yes. Subhash was sincere in his thoughts. Gandhi was also sincere in his thoughts. There was no confusion between them. Both the great persons had respect for each other.

So far I deeply felt that Gandhians have most respect for Subhas Chandra Bose. But unfortunately some ill-informed persons who deliberately does not read Gandhi, put Gandhi as an enemy of Subhash Chandra Bose.

“GANDHI REMOVED SUBHASH FROM CONGRESS” G. D. BAKSHI SHOUTS

A political party is supposed to have its principles and line of actions in concurrence with its principles. Congress had decided to proceed with freedom struggle on the line of non-violence. The activities of Subhash had generated a doubt on his faith towards principle of non-violence. Thereby MK Gandhi had put a candidate against Subhash in party’s presidential election. This is permissible in every Democratic Party. There is nothing wrong in it. There is no reason that every election should go uncontested. G. D. Bakshi should understand this.

Subhash won the election. Gandhi congratulated Subhash Chandra Bose. He advised him to select his own working committee members. He also accepted that the victory of Subhash was his defeat. He said that since the elected working body members are committed to non-violence and the elected president’s integrity on the party’s principle is not beyond doubt, the elected working committee members should resign. All the members of central working committee resigned. Gandhi was an ordinary citizen. He was not even an ordinary member of the Congress. It was up to the members of working committee to resign or not to resign. How Gandhi can be prevented for his expression of his opinion?

LOOK AT THIS. WHAT INDIRA GANDHI DID IN 1968?

She had no majority in working committee when her suggested person was rejected by the other members of working committee. She called an extraordinary meeting without the permission of the then party president, though there was no justification for calling emergency general body meeting because the general body meeting was due in next few months. Prime Mister is not supreme in his party. Working Committee is the supreme in a party.

Indira Gandhi prepared bogus lists of provincial members and the delegates were sent to general body meeting. The delegates dismissed all existing members of central working committee and a new working committee was formed and a new president was elected. Consequently Indira’s process of calling for general body meeting and conducting party’s election was challenged in the SC. Meanwhile general elections were conducted and the Congress of Indira won the election, and because she had majority elected members on her side, her party was recognized as the original Congress by the Supreme Court.

This was absolutely a wrong judgement.

HOW WAS THE JUDGEMENT WRONG?

Now suppose Congress (O) would have not been dissolved in 1977. And it would have remained as a part of Janata Party, and suppose now had it been a major part of BJP lead alliance, and had acquired more than 50 seats in Lok Sabha, then what would remain the value of the verdict of the SUPREME COURT ?

Now Congress (Indira or Nehruvian) has only 45 seats in L.S. Would the decision of SUPREME COURT could be reversed? Yes. It has to be reversed to maintain the spirit of the judgement of the Supreme Court. This way the then SUPREME COURT’s decision was ridiculous. This situation was pointed out by Piloo Modi a prominent leader of Congress (O).

SUBHAS WAS NOT HUNGRY OF POWER

Now let us examine the Case of Subhash Chandra Bose for academic reason. Suppose Subhash would have taken a risk. And he would have called general body meeting. He could have done this lawfully, unlike Indira Gandhi, because here, Subhash was already the president of the party. Subhash could have tried to take full confidence of the members of Congress. But he did not acted like that. Viz. Calling of emergency general body meeting.

There were two reasons. First, that working committee members were likely to get re-elected. Subhash Chandra Bose could have NOT been in position to get new working committee members of his choice get elected, and he could have been put to a situation to not take decisions at his choice and will.  This is because all the decisions in working committee are taken by the majority of the members. Second. Subhash was not ready to give a chance to public to feel that he was hungry of power.           

NOW LET US DISCUSS FOR ACADEMIC INTEREST AS TO WHO BROUGHT THE FREEDOM

What does Major General Bakshi quotes in support of the freedom brought by Mahatma Gandhi? And how he disapprove the same?

He quotes a song title of Ramachandra Narayanji Dwivedi alias Pradeepji (प्रदीपजी).

Pradeepji was a great poet of the time. He had glorified even Subhash too, in his many poems.

But here Major General G. D. Bakshi quotes

Viz.

दे  दी हमें आज़ादी बिना खडग बिना ढाल,

साबरमतीके संत तूने कर दिया कमाल.

On this he shouts and tells in very loud voice, THIS IS VERY WRONG. He further shouts;

Quit India

“Gandhi’s movement was totally failed. All the leaders had confirmed that the struggle of Congress for independence was failed. Quit India movement was failed. British government was determined to make it failed. British arrested all the leaders of Congress and thrown them into jails for indefinite period. All the leaders were tired and all of them were frustrated.”

Then he narrates the glory of Subhash Chandra Bose.

There is nothing wrong in glorifying Subhash Chandra Bose for the path he chose to achieve the freedom. Subhash Chandra Bose is worth to get the glory. Nobody have and nobody can have any objection to it.

IS IT A BURNING CONTROVERSY OR IS IT A CONTROVERSY AT ALL?

Is it a burning issue to simply prove the negation on the Gandhi’s “quit India movement’ and it had no role in toto, in bringing the freedom for India?

Simply some poet has written a poem and he said the Gandhi’s war with the weapon of non-violence was victorious. “QED” added by Major General G. D. Bakshi and then he rejects it.

NO VICTORY OR NO DEFEAT CAN BE DUE TO SINGLE REASON

Related image

Image result for images of quit india movement

Major General G. D. Bakshi was born in 1950. No person can have first-hand information when he was not available at the time and at the spot where and when event/s occurred. He does not know what was the atmosphere prevailing at that time.

I AM OLDER TO HIM BY TEN YEARS.

My information after reading Gandhi and others observations and feelings;

(1) Cripps mission was failed because it had pre-conditions that the limited freedom would be considered only after the World War II finished.

(2) Gandhi’s opposition led the Indian National Congress to reject the British offer.

(3) Cripps’ modification of the original British offer, which provided for no real transfer of power.

(4) Behind-the-scenes efforts of the Viceroy and Secretary of State for India to sabotage the mission.

(5) Gandhi was of the opinion that it was simply a trap. Gandhi believed this, on the basis of past experience of World War-I, when the British had strengthened the slavery rules, disregarding its previous commitments. 

Impact of Cripps Mission.

Image result for images of quit india movement

The long-term significance of the Cripps Mission really became apparent only in the aftermath of the war, as troops were demobilized and sent back home.

(1) As for the “quit India” could get launched, all the leaders were arrested. Not only leaders but a lot public figures were also arrested.

(2) Some of the leaders who were supporters of “Quit India movement” went underground. These were beyond the control of British.

(3)  It was asked by Mahatma Gandhi that there would be full scope of mass arrests, and thereby every person had to continue his fight for freedom in his own leadership.

(4) Since there was no leader to guide the people, wide spread violence had occurred. The British Government was not able to control the violence. MK Gandhi said, it was the failure of British, as it had no faith in non-violence.      

But the Quit India movement was not a dismal failure; rather the movement of 1942 gave the death blow to the British rule. India’s march towards freedom was hastened. This movement sparked off an aggressive national consciousness. Many people sacrificed their careers, property and even lives. Many freedom fighters’ families’ lives were paralyzed because earning members were arrested.

Image result for images of quit india movement

It can be a failure of both the ways. The way that Subhash chose, and the way that Gandhi chose.

Mass awareness decides the fate of Government. Mass awareness had generated the revolt of Indian Navy.

Aurabindo Ghosh was of the opinion that if all people of India would deeply think with their strength of inner conscious for the freedom of India that force would act on British conscious to decide to leave India.

Even Churchill recognized that there could be no retraction of the offer of independence which Cripps had made, but by the end of the war, Churchill was out of power and could do nothing but watch as the new Labor government gave India independence. This confidence that the British would soon leave was reflected in the readiness with which Congress politicians stood in the elections of 1945–1946 and formed provincial governments.

A HUMAN FIGHTS WITH ANOTHER HUMAN

We should not forget that “A human fights with another human” cannot be a supportive to the eternal truth for mankind, and it could not be advisable to follow it. Even this principle applies to ecological balance of the mother Earth, then how could it not be applied to human?

YES. CONDITIONS APPLIES

Yes the conditions are; Are you democratic? Do you have respect for each other, list out injustice, communicate, be logical, do peaceful protest, while protesting continue communication…

Mahatma Gandhi believed that protest with non-violence against British Government was suitable and it can work. Probably Major General G. D. Bakshi has not read the principles of non-violent protest … e.g. public participation at a large, awareness at a large, dialogue, stepping up, protests with responsibilities, strike, hunger strike, hunger strike on to death, civil disobedience, do not go on bails, be ready for punishment, prison, self-improvement while in prison and all the time be ready for dialogue.

NOW LOOK AT THIS. FORGET MAHATMA GANDHI.

Remember MK Gandhi is dead. Hindu Maha Sabha is dead. But Nehruvian Congress is alive. Communists are alive.

Who remembers Captain Lakshmi?

She was Presidential Candidate in 2002. She suffered only because she was a member of communist party. Otherwise she was a great lady.

All Non-Congress parties had supported British Government baring Indian National Army of Subhash. But the position of Subhash had become awkward when Russia supported British against Germany. There was a lot of diversity among the leaders of Indian National army.

Now let us not blame anybody or let us not abuse any freedom fighter and let us not put them against each other. They were all gallant gentlemen and gallant women who had sacrifice their lives.

UNDERSTAND THE COURAGE

There are two types of courage. One is Physical courage and the other is moral courage. One has not to select option. It is natural. But few people have both. Gandhi had both. He was ready to die for his principles. Subhash had also both the courage. Both died on unnatural death. There were others too on both the sides. Let us not devaluate them to satisfy our ego of righteousness.

WHO WAS HE?     

Who fought for democracy against Indira Gandhi when she imposed emergency to save her own chair for which she was disqualified? This was the exhibition of her craze of power.

It was Jai Prakash Narayan who led the people of India and he integrated all political parties. Who was he? He was veteran Gandhian. But he was not alone. He took people with him. Indira Gandhi was miserably defeated in election. She herself was defeated by 55000 votes. But the dream of Jai Prakash Narayan was vanished under his own eyes. He was a failure. So what?

Political Gandhi is a small element. Gandhi had struggled a lot. Gandhi and Self-reliance, Gandhi and Swadeshi, Gandhi and appropriate Technology, Gandhi and Cleanliness, Gandhi and naturopathy, Gandhi and health, Gandhi and duties of peoples representatives inclusive of Governors and President, Gandhi and Civic Sense, Gandhi and Hindu Religion, Gandhi and religious conversion, Gandhi and democracy inclusive of Ram-Rajya, Gandhi and inter relation between Bureaucracy and people. Gandhi and education…. All these are put together, Gandhi is a very big entity of India. Major General G.D. Bakshi should read “Collected works of Mahatma Gandhi”, or at least “Gandhi in Delhi” which is the daily diary of Mahatma Gandhi of his last 3 months in Delhi.

Related image

Shirish Mohanlal Dave

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WHO HAS NOT APPLIED MIND …?

The elections of Karnataka state Assembly are over.

The election result produced a hung assembly

BJP got 104 Seats,

Indian Nehruvian Congress got 78 seats,

JDS+ got 38 seats

And

Others got 2 seats

Somehow it appears that there is a flaw somewhere in the process of calling for proving the majority.

Who are the parties?

(1) Governor of Karnataka

(2) Nehruvian Congress and JDS

(3) BJP

(4) Supreme Court Judges

SC at flaw

(1) Governor of Karnataka what was his role?

(1.1) to invite the leader of the First Single largest party, to take an oath as CM,

(1.2) to ask the CM to appoint the provisional temporary speaker from the elected members to swear in,   

(1.3) to ask the CM to prove his majority on the floor of the house

(1.4) the CM should prove the majority support within 15 days on the floor of the house, not elsewhere,

(1.5) the CM to form the government after proving the majority support on the floor

Is there any flaw at the end of the Governor?

No. There is no flaw in inviting the leader of the First Single largest party to take an oath as CM, because it was as per the guide line prescribed by the Sarkaria Commission in its report and it has been approved by the SC.   

Was there any flaw in the appointment of Mr. Bopiah as provisional speaker of the house?

No. There was no flaw in his appointment because he was the senior most under the criteria of length of service in a cadre. Allegation against him of being bias was set aside by the SC long back in some other case. He had also worked as provisional speaker previously too.

Is there any flaw in asking the CM to prove the majority on the floor of the house?

No. There was no any flaw in asking him to prove the majority on the floor of the house. This was in accordance to the Supreme Court ruling in some other case that the majority has to be proved on the floor of the house, not elsewhere.

Is there any flaw in asking to prove the said majority support within 15 days.

No. There was no flaw in giving a maximum period up to 15 days for the job entrusted to the leader of the First largest single party. 15 days period is the legal period.

Why 15 days period is termed as the legal period?

Something related with multiple subjects and objects to be dealt with, a time limit of minimum 15 days has to be given, to avoid injustice to person/persons/party/parties. If the time period has the relation with a single person with no gathering, searching the matter related document/documents i.e. documental studies, then 72 hours’ time limit is justified. Here in our subject matter, this was not the case. Here it is a policy matter where the whole party’s members have some SAY. These SAYs are to be compiled and needed to arrive to several decisions related with alliance including the alliance to me made or not, through discussion within the party and then through consensus an amicable solution with or without some terms and condition. The leader of a party cannot take decisions at his whims in a democratic country. Hence the 15 days’ time limit given was a well justified limit.

Therefore the decisions of the Governor was foul-less and flawless.

The further details on this justified time limit we would see later.

(2) Nehruvian Congress and JDS

These are the petitioners. We do not know whether Nehruvian Congress is the First Part of the petitioner or the Second Part. Similarly about the JDS. Irrespective of the First Part or Second Part, the BJP lawyer should have asked to clarify. Leave this aside, it is the right of any person/organization to submit a petition. It is up to the discretion of the SC to get convinced or not. We would examine this point further  under the actions of the SC.

(3) BJP, is off course the opposite party. Action of BJP and SC we would discuss together.

(4) Supreme Court:

Who has issued instructions?

Governor has issued the instructions.

If the governor’s instructions are challenged then the Governor becomes the defendant. BJP cannot become either an opposite party or a defending party. But here, BJP being the first largest single party, its interest is affected if the SC does not hear BJP.

As for the Governor, the Governor cannot be called before any court. When this is the position of the Governor, then, it implies that the Governor must have an unchallengeable power, to take the decision. But no authority is allowed to take arbitrary decision in a democratic country. The decision should be taken with discretion.  Discretion means reasonable and justifiable.

The task before SC was to decide whether the instructions issued by the Governor contained any flaw and to rule on:

(1) To entertain the petition or not, when the Governor has discretionary power.

(2) If yes, then whether any instruction of the Governor was discretionary or arbitrary? If the SC finds prima-facie in the petition that any instruction of the Governor contains flaw, then the SC can entertain the petition.

The SC has ruled that the 4th instruction of the Governor was arbitrary.  That is the time limit given for proving the majority within 15 days contains a flaw.

On this point, the SC has a flaw in its order.  SC changed the time limit from 15 days to two days.

The petitioner parties, viz. the  Nehruvian Congress and the  JDS or vice versa, can come with dirty hand, is understandable, through their record of history. But the legal matters are heard, point to point with its relevance.

e.g. Indira Gandhi had spoken fourteen lies on oath, before the Allahabad HC, when her election was challenged by Rajnarain. But at that time, the HC had not ruled, that all of her, rest of the statements were also false. Similarly here, if the petitioners have come with the dirty hands, then this was required to be proved in the court. If the Opposite party proves this, then the petitioners are liable to be punished.

How and why the matter was so urgent that it should be heard at mid night?

It is said that the appointment of Protem speaker, by the leader of the BJP, can play a foul game. But SC can say that this is hypothetical ground. Court cannot give its verdict on hypothetical assumption. Hence SC should have rejected the petition and could have asked the petitioners to come after the appointment of the Protem Speaker.

The pray for the reduction of time limit for the reason of horse trading.

This point is also hypothetical. Horse Trading applies to every party, and if the factor of horse trading is to be considered, then it is to be applied to all.

Otherwise also, the point of preventing Horse Trading cannot be entertained. Because the petitioner One and the petitioner 2 gets full liberty for Horse Trading and that to for indefinite period. They can do the horse trading during the forming of government and after word also while negotiating on terms and conditions of common minimum program.

The point of petitioner coming before the Court with dirty hands lies here:

To have an alliance among two or multiple parties is a policy matter of each party.

To have an alliance, there needs to have terms and conditions which are supposed to be in concurrence with the party principles. Whether these terms and conditions are in concurrence with party principles or not, there needs an expert opinion and the members of the party must have a SAY to it. All these things can be decided only by the General body meeting of the party. Even the Central Working Committee is not authorized to change the policy of the party without the concurrence of the general body.

What should be or what is the procedure to decide such “policy issue” in a democratic set up?

The party president can call for an emergency general body meeting. But political parties are having members in lakhs. Therefore there are state committees. State committees further dependent on district, tehsil and city committees. They have to give suggestions and to elect delegates for the general conference. These delegates will submit the SAYs of members in the general conference. Then the central working committee would compile the SAYs and take the decision as per the delegated power under the constitution of the party. If any member of any Committee inclusive of MLA, if does not agree with the decision/s of the central working committee, he/she has the right to leave the party if he is in minority. No question arises of he being in majority because in that case the proposal gets rejected.

If the alliance has been done before the declaration of the Assembly elections, all these procedure can be followed. And a member against any terms and conditions of alliance or even against the alliance itself, would not file his candidature in assembly election and even he could resign from the party.

If the alliance is proposed after the poll, how to follow the line of democratic spirit to have the alliance?      

It is mandatory to follow the aforesaid procedure to maintain the spirit of the democracy. On the plea of an urgency no party can overlook the basic characteristic of democracy. Further there is no urgency because if the matter is delayed even beyond 15 days, there was no scope of breakdown of the constitution.

Generally for calling any meeting, a notice of 15 days in advance is required for committee of any level with an agenda. In case of an urgency and a known single agenda, a notice of 72 hours is OK at lower level. But when the higher level committee is dependent on the suggestions of the lower level committees, inclusive of electing and sending delegates to the general body meeting at the Head Quarter, 72 days’ notice is not feasible. That is why 15 days’ time period was ok.

Democratic spirit is the transparency and accommodating every body’s SAY so that it can reflects the opinion of general members to the central working committee. Now, in case of post poll alliance even if all the above procedure is followed and accordingly the alliance to a party is approved by a party, an elected member of a party may not agree to the alliance. It is the liberty and the right of that elected member/s to disagree with the post-poll alliance.

Now it is matter of controversy, that in such a case the elected member/s should resign from the MLA-ship or not?

If he/she resigns from the party is understandable. The party can dismiss the member that can also be understandable.

But whether the MLA is the representative of the people of the constituency or the representative of the party? This point is controversial for some people.

Whether the party is superimposing on MLA or people of the constituency are superimposing on MLA?

In democracy the people are the supreme. Thereby in democracy, the MLA should act according to the desire of the people of the constituency.

If while canvassing the contestant of a party has not made mention about a could be alliance to a party, but on the contrary the contestant had abused and derogated the opponent party/parties and its contestant, in that case if that contestant wins the elections the contestant becomes the MLA, and that MLA is not supposed to resign from MLA-ship, because he has not lost the faith of his people.

It is on record that SC has ruled that the people are supreme even above the constitution in democratic countries, then a party cannot terminate any MLA on the ground of the MLA has lost the faith of the party. People are supreme not the party, not the SC, not the house and not the constitution. The burden of proof that the MLA has lost the faith  of the people, lies with party. If any law is not in concurrence with the aforesaid burden of proof, the law is null and void.  

The Supreme Court has not considered the characteristic of the democracy. The party leaders have no arbitrary power for having an alliance. The SC appears to have been taken for granted that the central working or its president enjoys the arbitrary power.  They cannot have such arbitrary power in democracy.

Further the SC has not cared to see or the SC appears to have been overlooked the mandatory procedure to be followed by the petitioner parties to have an alliance reflecting the approval of general body. This is the big flaw in the decision of SC.

The SC has not examined and it has overlooked the mandatory characteristic of parties in a democratic country in passing the order of curtailed time limit of to 72 hours.

We can conclude that it appears;

SC has not taken “ an alliance with another party” is a policy related matter.

SC over ruled that a party should maintain transparency in a democratic country,

SC has approved that non-democratic parties are allowed to function in politics of a democratic country.

SC found on hypothetical ground that there could be horse trading at the end of opposite party (BJP) without examining any past records of it.

SC found no scope for horse trading between two petitioning parties even though they have unlimited scope for indefinite period.

or the SC has not applied mind

As for the BJP, we do not know as to why it has not represented its own case in view of the democratic principles of transparency and mandatory procedures to compile the members’ voice.

If the party is already having its pre-planned strategy of dealing with the matter, it is ok.

Amit Shah is considered to be the modern Chanakya who followed the philosophy of Lord Krishna who had said “ShaTham Prati ShaThyam Samacharet” शठं प्रति शाठ्यम्‌ समाचरेत्‌”.

Shirish M. Dave

 

 

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