First, we are happy that the queries we placed on the manner three Trinamool MLAs were disqualified by the Manipur Speaker, Th. Lokeshwar Singh, although three constitutes more than one third of the party`™s total of seven MLAs in the Assembly, has been answered, thanks to a healthy discussion thread in a social network site, which prompted us to scan the internet for more information on the matter. Paragraph 3 of the 10th Schedule`™s original 1985 text, which said any group of MLAs of a legislature party can split their party without attracting disqualification under the 10th Schedule if they form one third of the total strength of their original legislature party, had been omitted in 2004, following the 91st Amendment of the Constitution the previous year. As it stands today, a legislature party can only merge with another party and will attract no penalty under the 10th Schedule if two thirds of its MLAs decide to do so together. However, if some MLAs from the original legislature party decide to go against this decision of a majority of the party`™s MLAs to split party, they too will not be penalised for defying the whip of the majority, and can continue to be members of their original legislature party. For the good or the bad, this is the law as it stands today, that is, until it becomes necessary for the Parliament to amend it to give it another shape. Under the circumstance, there can be no longer any dispute about the disqualification of the three Trinamool MLAs for splitting the party. On the related question raised in many quarters about the merger of five legislators of the MSCP to the Congress earlier, the 10th Schedule is no barrier as it allows merger, provided those opting to merge form two thirds of the legislature party they are abandoning. Since all five MLAs of the MSCP made the decision on the merger unanimously, the issue was effectively sealed there and then, and they were not acting against the law.
It is another matter that many people were repulsed by the habitual acts of disloyalty of these MLAs. Though good laws must be as close as possible to the intuitive and universal sense of rectitude, this is not always possible. Procedural law, which is what modern law is about, therefore cannot always guarantee a sense of natural justice, but it goes without saying it must strive to. As for instance, once upon a time slavery was not illegal, though few or nobody would have ever doubted it was morally wrong even then. Today it is unquestionably illegal, under national and international laws. To take a more glaring and immediate example, one which those in the Northeast will have no trouble understanding, there is the Armed Forces Special Powers Act. From the moral and philosophical standpoint, there will be few who endorse this draconian law. Yet, it is the law, though on an incremental basis, it is distancing itself from any sense of rectitude, in the Northeast, in the rest of the country, and the world. It survives as a statute not because of its moral rightness, but because it addresses a paranoiac sense of insecurity of the Indian State. We do hope someday this gulf between legality and rectitude will be bridged, and a law that addresses what are legitimate insecurities of the State as well as takes care of the problems on the ground replaces it. Until such a time the, liberal thinkers who believe in the virtues of democracy will have to hang their heads in shame, for the continuance of the AFSPA is a dark reminder to all of the failure of the liberal imagination. This is not to suggest the Northeast has ceased to be in a disturbed condition. Many parts of it still are far from normal, but it is for the liberal State to come up with what has been referred to as the moral imagination to tackle the issue, other than by the use of dark and sinister laws.
Leader Writer: pradip Phanjoubam
Read more / Original news source: http://kanglaonline.com/2015/06/between-law-and-rectitude/