Eknath Shinde was "hand-in-glove with the BJP all along," wrote the Chief Whip.
There is "no better way to reward defection than offering its leader the post of Chief Minister," Shiv Sena Chief Whip Sunil Prabhu, part of the Uddhav Thackeray faction, has told the Supreme Court ahead of the big hearing over the political crisis in the state. The rebel MLAs should be suspended until disqualification proceedings are complete, Mr Prabhu wrote.
On June 27, the Supreme Court had issued notice to the Deputy Speaker seeking his reply on the plea filed by Eknath Shinde camp against his disqualification notices.
Members of the Shiv Sena faction led by Uddhav Thackeray -- including Sunil Prabhu and Deputy Speaker Narhari Zirwal -- have now filed their responses. The court will hear a clutch of petitions from both sides.
"The MLAs have engaged in anti-party activities and deserve to be disqualified as Members of the Maharashtra Assembly," Mr Prabhu wrote yesterday in response to Eknath Shinde's appeal.
The rebels have committed the "constitutional sin of defection". Eknath Shinde -- who is now the Chief Minister -- was "hand-in-glove with the BJP all along," read Mr Prabhu's response to the court.
The MLAs of Maharashtra were passing "resolutions" sitting in Assam, which had the effect of destabilising their own government. Their conduct is "egregious and palpable" and their membership in the party should be terminated, the Chief Whip added.
Mr Prabhu has also asked the top court that the rebels be stopped from entering the assembly or participating in any House proceedings until disqualification proceedings are complete. The rebels last attended the two-day special session of the assembly where they voted in favour of the government led by Eknath Shinde.
Deputy Speaker Narhari Zirwal, too, has justified the disqualification action against rebel MLAs. He has said if the Eknath Shinde camp can knock at the doors of the top court in 24 hours why can't they respond to disqualification notices issued by him in 48 hours. He added that MLAs were given 48 hours to respond to disqualification petitions and there was no illegality in that.
Mr Zirwal said the MLAs never contacted him and sought more time to respond. He also said that the Supreme Court has held that the number of days is insignificant and what matters is whether the respondent is given sufficient and reasonable time to file his reply.
The Deputy Speaker said the "notice about 39 MLAs leaving the party came to me through an unverified email id. Hence, it was not taken on record."
Mr Zirwal also added that the notice by the rebel MLAs for his removal was invalid as it can be given only when the assembly is in session.
Last month, Mr Zirwal issued notices to 16 rebels who followed Ekath Shinde to Surat, then Guwahati and later Goa. Mr Shinde's name is on the list too.
The notices were sent following a request for disqualification from the faction led by former Chief Minister Uddhav Thackeray before he stepped down from the top post.
But the rebels had challenged it in court, claiming they had two-thirds majority therefore they are the real Shiv Sena and have the power to ally with the BJP.
Team Thackeray contended their stance is illegal and under the anti-defection law, they can be disqualified as they have not merged with the BJP.
The Tenth Schedule of the Constitution disqualifies defectors from the membership of legislative bodies, but some exemptions have been granted in its Paragraph 4, which reads: "Disqualification on ground of defection not to apply in case of merger. (1) A member of a House shall not be disqualified… where his original political party merges with another political party and he claims that he and any other members of his original political party: (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group….
"(2)… The merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger."
The sub-section (2) has often been interpreted as – in case two-thirds among a party's lawmakers defect and join another party, they would escape disqualification. This has been upheld by the High Court in Goa.
Critics say the whole of paragraph 4 has been badly drafted and leaves loopholes for horse-trading -- which is just what the law intended to stop.
Despite the rebellion carried out by the Eknath Shinde faction, the original Shiv Sena remains under the leadership of Uddhav Thackeray, Chief Whip Sunil Prabhu wrote.