Top legal minds differ over NPF whip row

Former Judge, Supreme Court of India, Justice H.K Sema has given his legal opinion on the current dispute regarding the whip of the NPF party.

Majority NPF MLAs could face disqualification according to opinion of former SC Judge, Attorney General of India

Naga Republic News

According to the legal opinion dated November 3, 2017, Justice Sema points out that the whip issued by Dr Shurhozelie on November 14, 2014 appointing KiyaniliePeseyie was valid and enforceable.On the other hand, the notification of 19th July, 2017 appointing TR Zeliang as whip of the NPF Legislature Party was therefore “void ab initio and non est”.

Justice Sema points out that the power to issue whip/directions under paragraph 2(b) of the Tenth Schedule belongs to the political party and not the Legislature Party. As such Justice Sema concluded that any MLA who voted against the whip issued by KiyaniliePeseyie incurred disqualification under paragraph 2(1)(b) of the Tenth Schedule read with Article 192 (2) of the constitution of India.

Earlier senior advocate of the Supreme Court and former Attorney General of India, Soli J. Sorabjee had also given the opinion that the Nagaland Legislative Assembly Speaker, had no legal competence to confirm the appointment of T.R. Zeliang’s claim of being appointed Chief Whip of the NPF party.

The former Attorney General of India, Soli J. Sorabjee had also concluded that “the legislators who defied the Chief Whip direction and voted in favour of T.R. Zeliang are liable to be disqualified under Schedule X of the Constitution of India.”

Sorabjee gave his opinion in a written text in response to request from NPF Central spokesperson AchumbemoKikon regarding the matter of appointment of party Whip in the State Assembly. The other NPF group led by Neihpiu Rio and TR Zeliang had also sought the Legal opinion of senor Advocates of the Supreme Court, Fali S. Nariman& V. Giri on the NPF whip.

Both Fali S. Nariman and V. Giri disagreed with the opinion given by Sorabjee. Nariman in his reply took the view that the petition filed by KiyaniliePeseyie before the Speaker was not a legitimate and valid claim. According to him, the period of operation of the direction contained in the first Notification of 15th November, 2014, got superseded by the Notification of 19th July, 2017, which recognised Mr. T.R. Zeliang, Leader of NPF Legislature Party as Whip of the NPF Legislature Party with effect from 4th July, 2017.

“The only operative Whip…. was that of Mr. T.R. Zeliang, Leader NPF Legislature Party and Whip NPF Legislature Party and not that of Mr. KiyaniliePeseyie”, Nariman stated while also adding that the vote of the 37 NPF Legislature Party MLAs in favour of Mr. T.R. Zeliang strictly conforms to the Whip issued by Mr. T.R. Zeliang on 19th July, 2017 and consequently there has been no incurring of any disqualification under paragraph 2(b) of the Tenth Schedule of the Constitution.

The legal opinion of V. Giri, Senior Advocate of Supreme Court was along similar lines put forward by Fali S. Nariman. According to him the resolution on July 7, 2017 by the majority of NPF MLAs electing TR Zeliang as the chief whip overruled any appointment of a whip prior to the said date. “Therefore, from the date of the Resolution i.e. 04.07.2017, the sole authority to issue whips rested with T.R.Zeliang and no other   person is entitled to issue a whip thereafter and the same is not binding on the legislators of the Nagaland People’s Front”.

Accordingly Giri maintained that “the whips issued by KiyaniliePeseyie on 19.07.2017 and 21.07.2017 are invalid and the legislators are under no obligation to obey the said whips” and that in fact, “they would be violating the whip issued by T.R.Zeliang if they obey the whip issued by any other person”.

Giri was also of the opinion that the Constitution of the NPF does not contain any specific provision regarding the appointment of a whip. And since no provision exists; Giri stated that it was “the Leader of the Legislature Party commanding the majority of the support of the legislators of the said party who is to be authorized to appoint a person to act as the whip of the party”.

Giri therefore concluded that the whip issued by T.R Zeliang was “a valid whip and any whip issued by Dr.ShurhozelieLiezietsu or a person nominated by him will be a nullity and not binding on the legislators”.

Justice H.K Sema meanwhile has argued that based on the Tenth Schedule of the Indian Constitution and also the NPF party constitution, Dr ShurhozelieLiezietsu is the only person competent to issue directions whips in terms of paragraph 2 (b) of the Tenth Schedule.

Disagreeing with the legal opinion given by Nariman and Giri, Justice Sema pointed out that the power to issue whip/directions under paragraph 2(b) of the Tenth Schedule belongs to the political party and not the Legislature Party. As such Justice Sema concluded that any MLA who voted against the whip issued by KiyaniliePeseyie incurred disqualification under paragraph 2(1)(b) of the Tenth Schedule read with Article 192 (2) of the constitution of India.

Click on the full text of legal opinions given by Fali S. Nariman & V.Giri, Soli J. Sorabjee and Justice H.K Sema