N Sathiya Moorthy, 19 September 2017
The judiciary has often shied away from contesting the speaker’s right or that of the legislature, but it has not always avoided taking a close look at the processes employed and arrive at conclusions that are binding on all concerned, says N Sathiya Moorthy.
With Tamil Nadu assembly speaker P Dhanapal ordering the disqualification of 18 MLAs of the ruling All India Anna Dravida Munnetra Kazhagam faction identified with jailed party general secretary V K Sasikala Natarajan and her nephew T T V Dinakaran, what had remained a political crisis has overnight acquired a constitutional form as well.
What makes the decision as much ironical as it is interesting and intriguing is the fact that the speaker has this time lost no time in having the vacancies notified for the Election Commission to conduct fresh polls for the 18 seats.
In contrast, Dhanapal, who was also speaker at the time, took nearly two months to notify the vacancy after a Bengaluru court’s sentencing of then chief minister and party boss, the late Jayalalithaa, to four years in prison, caused the vacancy of her Srirangam assembly seat, on September 27, 2017.
Already, the Madras high court is seized of the ‘disqualification’ of 18 MLAs. Only last week the court had directed/advised the speaker to hold on the processes until September 20, but Advocate-General Vijaya Narayanan, appearing for Dhanapal, declined to make any commitment.
Be it as it may, the higher judiciary in the country has often shied away from contesting the speaker’s right or that of the legislature in such matters. However, they have always not avoided taking a close look at the processes employed and arrive at conclusions that are binding on all concerned.
In this particular case, counsel appearing for the 18 MLAs had submitted before Justice K Duraiswamy as to the absence of the required appendix and other documents, as attachments to the speaker’s notice to his clients, for them to respond. The relevant legal provisions have made the process mandatory.
Even as the speaker had commenced the processes, it was pointed out how under the anti-defection law only a defiance of the party whip alone would entail a demand for disqualification. As no such vote has taken place yet, there was no such vote or consequent defiance of any whip for the speaker to be able to proceed in the matter.
A third point of contestation proceeds from the TTV MLAs’ individual letters to acting Governor Ch Vidyasagar Rao many weeks ago, submitting that they were withdrawing support to Chief Minister Edappadi K Palaniswami, but not to the party-led government.
Even as the content and intent of the signatories were contestable as the spirit of the constitutional provision is against any such ‘qualified withdrawal, other questions have arisen along side.
Weeks after the MLAs met the governor, Rao was reported to have told a delegation of some Opposition party leaders (without any representation in the assembly) that the contents of the TTV faction’s letters related to internal affairs of the ruling party, and that the Raj Bhavan had no role in the matter.
The Raj Bhavan has since not denied the claims made by the Opposition leaders after the meeting, which went viral both in the regular and social media.
If the MLAs’ letter was the only cause for the ruling party/faction chief whip to demand their expulsion, the question also arises how the speaker could act on a letter on which the governor had reportedly claimed that he did not have any locus standi.
If, however, the Raj Bhavan found it proper to forward those letters to Speaker Dhanapal — and not Chief Minister Palaniswami — for comments/response, it is not known to have kept the signatory MLAs in the loop, as is customary and possibly required otherwise, too.
If the Raj Bhavan had not forwarded the letters to the speaker directly, then the question arises as to how Dhanapal could act on a non-existent document, based on the complaints of the ruling faction’s chief whip.
Likewise, the speaker’s reasons for disqualification, like the levelling of graft charges against the chief minister and team, meet with the requirements of law. If the governor stood by reports that it was a party affair, the speaker may not be able to take a different line.
Though not much clarity is likely to emerge when the high court hears the case on September 20, the secretary to Governor Rao is expected to respond to the court’s notice on related issues arising out of the Leader of the Opposition M K Stalin’s petition, seeking a direction to the governor for a trust-vote by CM Palaniswami.
It is both customary and constitutionally-mandated that the head of state, be it the President or the governor, should not be named in any court case as a respondent. However, they are sought to be impleaded through their secretary. In the past, Presidents and governors have invariably responded through their last-minute decisions and actions, to avoid embarrassment by and before the courts under their own jurisdiction.
Then governor, the late M Channa Reddy, clearing then Janata Party president Subramanian Swamy’s petition for sanction to prosecute Chief Minister Jayalalithaa in the ‘TANSI land-deal scam’, is a case in point from and during her first term in office. Reddy granted the sanction after the Supreme Court, after several adjournments, indicated to the governor’s counsel to come up with a decision in the immediate next hearing.
Incidentally, the TTV faction sought to implead itself in the Stalin-initiated case, which was granted by the court. Politically, detractors of the two in the ruling AIADMK faction see a conspiracy between them both to try and unseat the EPS-led government.
Clearly, the DMK would be happy with an early election, for which the chances seem to be receding, at least on paper. After declaring that they would not go back to the governor on their repeated pleas with Rao on the trust vote issue, Stalin declared they would only approach the courts and the people, and he has since taken the first step.
Elections are, however, not in the hands of the DMK leadership, though the party is said to be considering the possibility and wisdom of en masse resignation of all 98 MLAs, including eight of the Congress ally, if a trust vote became possible with the reduced numbers caused by the ‘disqualification’ of the 18 TTV legislators.
The DMK legislators group is meeting in Chennai on Tuesday, only hours after Governor Rao arrives in Chennai, after meetings with President Ramnath Kovind and Union Home Minister Rajnath Singh in Delhi the day before. Both President Kovind and Governor Rao are legal and constitutional experts in their right.
Rao’s Delhi engagements ahead of the Chennai visit have already given raise to (avoidable) speculation that the Centre and the governor together may be actively considering the possibility of keeping the state assembly under suspended animation after dismissing the Palaniswami government, or advising the latter to submit the resignation of his team, ruffling fresh weathers from within.
An easier, even if a belated, way out could be for the chief minister volunteering to face a trust vote and requesting the governor to convene the assembly on an earlier date — which can happen only with a seven-day notice.
While the results of such a vote now are not unpredictable per se, questions have also arisen about the fate of Dinakaran’s earlier threat of ‘sleeper cells’ within the EPS faction, with which three-time Chief Minister O Panneerselvam-led group has merged but not without heartburn in others, whom the merger did leave high and dry.
Some of them are MLAs and some others MPs, who had hoped to be roped in at the Centre, if and when the re-merged entity had been inducted into the ruling BJP-NDA at the Centre.
For now, the disqualification of the 18 Dinakaran MLAs has rendered any patch-up within the AIADMK all but impossible. The fight on that end is shifting towards the Election Commission, where the Dinakaran faction is sure to cite the AIADMK constitution and claim that only Sasikala as general secretary was authorised to call the party general council (even if the aim was to remove her from that very post).
The EC also has to find answers how it had accepted the AIADMK constitution in the first place, which provided for direct election of the party general secretary by all primary members (now claimed to be 1.5-crores) without asking the leadership as to the mechanism at their disposal for conducting such elections, free, fair and transparent.
The fact remains that the EC itself may not have the mechanism to verify membership claims, either of the party or of individual members. It is thus unclear how the EC intends deciding on the ‘real party’ to be able to de-freeze the AIADMK’s ‘Two Leaves’ election symbol, any time soon.
The last time, the Congress for instance, enrolled members for the conduct of organisational polls way back in 1991 under then Prime Minister P V Narasimha Rao as party chief, the TN membership campaign produced an interesting array. Included in the party list were such star attractions as superstar Rajnikanth and then up and coming young star, Kushboo.
Today, Kushboo is an AICC spokesperson, after doing a stint in the DMK, and Rajnikanth has (once again) promised his fans to be ready for his imminent political entry.
http://www.rediff.com/news/column/tns-political-crisis-turns-into-constitutional-one/20170919.htm
N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation, Chennai Chapter.