Shinde vs Thackeray : Who Is The Real Shiv Sena? 10th Schedule Clinches The Issue - PDT Achary | Full Text Of Interview

PDT Achary, the former Secretary General of Lok Sabha, opined that the tenth schedule of the Constitution plays an important role in determining which faction can claim to be the real political party following a rift.In this regard, he referred to Explanation (a) to the second paragraph of the tenth schedule of the Constitution, which says "an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member". So, this means that unless there is a merger with another party, an elected member will be deemed to belong to the political party which set him up as a candidate. Referring to the context of the rebellion in Shiv Sena party in Maharashtra, Achary said that by the application of this Explanation to Paragraph 2 of the tenth schedule, Shinde will be deemed to belong to the Shiv Sena party led by Uddhav Thackeray."In my view, the Speaker has to go strictly by the 10the schedule. Now 10th schedule says one thing very clearly and that in my opinion will clinch the issue. That is explanation to paragraph two - it says that it is that party which has set them up as candidates is the party to which they belong. So that means all these members, all the 55 members of Shiva Sena were set up as candidates by the Shiva Sena which is headed by Uddhav Thackeray and therefore all of them belong to Shiva Sena headed by Uddhav Thackeray, unless these members merge with another party", he said."..there is only one Shiv Sena which is led by Uddhav Thackeray because it is the party headed by him which set them(Shinde group) up as candidates and there is no ambiguity about this.... So it is the whip which is issued by the Shiv Sena which is headed by Uddhav Thackeray that is valid and if there is a violation of that, then naturally you are liable to be disqualified. This is the way anti-defection law needs to be applied", Achary explained.He further said the majority within the legislative party cannot be sole determining factor in deciding if the faction can claim to be real party. The entire organisational structure of the party has to be taken into account for that determination, which is to be done by the Election Commission.Achary was speaking in an interview by Manu Sebastian, Managing Editor of LiveLaw. The video of the interview can be watched here.The full text of the interview is given below :Sebastian : When a rift happens in a political party how do we determine which faction represents the real party. This question assumes relevance in the context of the ongoing political developments in the State of Maharashtra. We have with us Mr. PDT Achary, who is the former secretary general of the Lok Sabha, to discuss the law and procedure on this topic. Two weeks back, we had another interview with Mr.Achari where we had discussed issues relating to disqualification proceedings and anti-defection laws. So this is a kind of a sequel to that interview. Now over to you sir, welcome sir.Achary : Thank You.In the Maharashtra context, a very curious development has happened. The so-called rebel group led by the present Chief Minister Mr.Eknath Shinde claims to have the support of majority of the MLAs. So out of the 55 Shiv Sena MLAs, at least 39 MLAs are with Mr.Eknath Shinde. On the other hand, officially, on paper, Mr. Uddhav Thackeray continues to be the President of the party. So in this context, how do we determine who can claim to be the real party? What is the law and what is the process for such such a determination?Achary : See, when a party splits, normally the split occurs both in the organisational wing and also in the legislative wing and that has been the pattern. We have seen this happening in most of the parties which have split at different times and therefore when they approach the election commission, there will be two factions of the party. I mean, each faction will contain the organisational part of it and also the legislative partyIn this case, you know there is a difference. Here on one side you have the legislative wing of the party and on the other side you have the organizational wing plus a few MLAs but majority of the MLAs are with Shinde who is heading the legislative wing of that party. But under the law, the legislative wing of the party is a part of the original party political party, because that is the party which is registered as an association of individuals and registered with the Election Commission as per Section 29A of the Representation of People Act, which is headed by Mr.Thackeray.So on the one hand, you have a legislative party which is not recognized by the law and on the other you have a party which is recognized by the law. Now who will the Election Commission choose as the true party, that is a ticklish question which the Election Commission has to decide.When there is a split in your party, the Election Commission has its own method of finding out and the law also requires the Election...

Shinde vs Thackeray : Who Is The Real Shiv Sena? 10th Schedule Clinches The Issue - PDT Achary | Full Text Of Interview

Manu Sebastian

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