Legal opinion of Fali S. Nariman & V. Giri on NPF whip

Dimapur, 21st October, 2017

Today people try to interpret every legal issue in their own way without consulting legal luminaries. NPF led DAN Govt has sought legal opinion from Senior Council of Supreme Court for clarity of those people who are thoroughly confused on NPF Whip and matters related to it. The legal opinion of Fali S. Nariman and V. Giri, Senior Advocates of Supreme Court is reproduced hereunder for general understanding of NPF Whip and issues surrounding it.

1.The legal opinion of Fali S. Nariman, Senior Advocate of Supreme Court:

QUERY:

It is in view of the conflicting cross-directions issued —
(a)By one Mr. Kiyanilie Peseyie claiming to be Chief Whip of the NPF through letter dated 14th November, 2014; which had been notified on 15.11.2014 by the Nagaland Legislative Assembly Notification with effect from 14.11.2014; and

(b)By Mr. T.R. Zeliang appointed as 'Whip' by NPF Legislature party on 4th July, 2017, which had been acknowledged and Notified on the 19th July, 2017 by the Nagaland Legislative Assembly Secretariat (Kohima) - with effect from 4th July, 2017.

My Opinion has been sought by the Querist as to whether in terms of paragraph 2(b) of the Tenth Schedule, in the events that have happened the claim made in the Petition filed by Mr. Kiyanilie Peseyie before the Speaker is a legitimate and valid claim.

OPINION:

In my opinion it is not, for the reasons given below:
(a) The two Notifications of the Nagaland Legislative Assembly Secretariat — the one dated 15th November, 2014 and the other Notification dated 19th July, 2017 make it clear as to the period of operation of the directions under each Notification. In the Notification dated 15th November, 2014, of the Nagaland Legislative Assembly Secretariat, Kohima, it is stated (and recognised) by the Secretariat that Dr. Shurhozelie Liezietsu, President of the NPF has appointed Mr. Kiyanilie Peseyie as the Chief Whip of the NPF Legislature Party w.e.f. 14th November, 2014; its operation remained effective until the issue by the Nagaland Legislative Assembly Secretariat of the later notification dated 19th July, 2017 wherein it has been acknowledged that the NPF Legislative Party has informed the Hon'ble Speaker of the appointment of Mr. T.R. Zeliang, Leader NPF Legislative Party as Whip of the NPF Legislative Party w.e.f. 04.07.2017.

(b)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.

(c) Since the questions raised are:
(i) As to the abstention of voting at the meeting of the Assembly on 19th July, 2017 ("to test the majority support of the present Cabinet headed by Chief Minister Dr. Shurhozelie Liesietsu"); and
(ii)As to the votes recorded at the meeting of the Assembly on 21st July, 2017.

The only operative Whip on both these dates was that of Mr. T.R. Zeliang, Leader NPF Legislature Party and Whip NPF Legislature Party and not that of Mr. Kiyanilie Peseyie — altogether apart from the fact that at the Assembly Session of 19th July, 2017, there was in fact no voting at all and hence there could have been no abstention from voting within in the meaning of paragraph 2(b)(1) of the Tenth Schedule of the Constitution of India.

(d) It is an acknowledgement of the position that the operative Whip on both these dates was that of Mr. T.R. Zeliang, Leader NPF Legislature Party and Whip NPF Legislature Party (and not that of Mr. Kiyanilie Peseyie) that the Writ Petition was filed on 25th July, 2017, by Dr. Shurhozelie Liesietsu and Mr. Kiyanilie Peseyie.

By Dr. Shurhozelie Liezietus and Mr. Kiyanilie Peseyie to quash and set aside Nagaland Legislative Assembly Notification dated 19th July, 2017 "accepting and or recognising Shri T.R. Zeliang as the Chief Whip of the NPF Legislature Party". Hence, unless the Writ Petition No. 138K of 2017 is adjudicated in favour of the petitioners Dr. Shurhozelie Liesetsu and Mr. Kiyanilie Peseyie, the effective direction remains that of the Whip Mr. T.R. Zeliang Leader of NPF Legislature Party — with effect from 4th July, 2017.

In addition, I am also of the view that:
(i) 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.

(ii) Since the petition filed before the Speaker by Mr. Kiyanilie Peseyie has not disclosed the initiation and pendency of Writ Petition No. 138K of 2017 before the Kohima Bench of the Gauhati High Court, there can be no decision on the Petition filed before the Speaker so long as High Court Writ Petition No. 138K of 2017 is not decided — since the Writ Petition 138K of 2017 acknowledges that the Notification of 19th July, 2017 issued by the Nagaland Legislative Assembly accepting and recognising Mr. T.R. Zeliang as Chief Whip of NPF Legislature Party, remains as an impediment to the Petitioners in the Writ Petition obtaining any relief unless and until the notification of 19.7.2017 is quashed and/or set aside.

(iii) It is axiomatic that a subsequent appointment of any person to any position impliedly overrides and revokes any prior appointment. Consequently, the alleged prior appointment of Mr. Kiyanilie Peseyie as Chief Whip of the party "with effect from 14th November, 2014," recognised by the secretariat of the Legislative Assembly and notified on 15.11.2014 stood superseded by the Notification of 19th July, 2017, of the Secretariat of the Legislative Assembly w.e.f. 04.07.201Z; consequently, so long as the recognition by the Speaker of the appointment of Mr. T.R. Zeliang as Leader of the NPF Legislature Party as Whip of the NPF Legislature Party remains valid and continuing and is not quashed or set aside by the High Court in the pending Writ Petition it is not open to Mr.Kiyanilie Peseyie to stake his claim as Leader/Chief Whip of the NPF Legislature Party and or to consequently claim to invoke the provisions of paragraph 2(b) of the Tenth Schedule.

2.The legal opinion of V. Giri, Senior Advocate of Supreme Court:

QUERIES:

A.Whether Dr. Shurhozelie Liezietsu can authorize any NPF MLA to be the whip and also to issue a whip to defeat his own party's Chief Minister on a motion of confidence moved in the House on 21.07.2017?

B.Whether Dr. Shurhozelie Liezietsu can, in the absence of express provisions in the Constitution of NPF arrogate to himself the power to appoint whip or authorize any person or authority including an MLA to issue whip for other MLA's?


C.Is not the whip issued by T.R.Zeliang the valid whip?

D.Whether in view of the general nature of appointing MLA's as whip in a State Legislature and in view of paragraph 8(1)(b) of the Tenth Schedule authorizing only the Leader of the Legislature Party to submit reports to the Speaker in regard to condonation of violations of whips, can the term 'Political Party' used in paragraph 2(1)(b) of the Tenth Schedule be read as not including the Legislative Wing?

E.Whether in view of the facts above, an inference can be any more drawn that the word 'Political Party' used in paragraph (2)(1)(b) of the Tenth Schedule is confined only to the Organizational Wing of the Party to the exclusion of the Legislative Wing?

F.What is the effect of the condonation letter dated 02.08.2017 issued by the Dr. Shurhozelie Liezietsu's group within the Nagaland People's Front?

G.What is the effect of the letter dated 20.07.2017 appointing Kuzholuzo Nienu as the NPF Legislature Party Leader by Dr. Shurhozelie Liezietsu and whether a Legislature Party Leader can be appointed without being elected by the Legislature Party?

H.What is the effect of two Constitutions which exist and which is the Constitution which will be considered valid?

OPINION:

Based on the aforesaid facts my opinion on the questions is as follows:

QUESTIONS A, B, C:

It is apparent that vide Resolution dated 04.07.2017, a majority of the MLA's of the Nagaland People's Front have elected T.R.Zeliang as the chief whip. Thus, any appointment of a whip prior to the said date stood overruled. 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. Thus, the whips issued by Kiyanilie Peseyie on 19.07.2017 and 21.07.2017 are invalid and the legislators are under no obligation to obey the said whips. In fact, they would be violating the whip issued by T.R.Zeliang if they obey the whip issued by any other person.

Moreover, the Constitution of the Nagaland People's Front does not contain any specific provision regarding the appointment of a whip. The powers of the President are delineated in Article V and authorize the President to appoint and nominate persons which power, however, does not authorize him to appoint/ nominate a whip. While, the President has the power to promulgate Ordinances under the said Article, however, the said power cannot be extended to appoint/ nominate a whip in derogation of the specific power of appointment/ nomination which does not include the power to nominate or appoint the chief whip.

Since, no provision exists; it is 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. This is apparent by Rule 3(2) of the Members of Nagaland Legislative Assembly (Disqualification on Ground of Defection) Rules, 2003 which specifically mentions that only the Leader of the Legislature Party can appoint the whip. In view of the facts and circumstances above, it is apparent that T.R.Zeliang commands the majority of the house and is, thus, authorized to appoint a person to act as the whip. The whip issued by T.R.Zeliang is a valid whip and any whip issued by Dr. Shurhozelie Liezietsu or a person nominated by him will be a nullity and not binding on the legislators.

QUESTIONS D, E:

Rule 2(e) of the Members of Nagaland Legislative Assembly (Disqualification on Ground of Defection) Rules, 2003 defines 'Leader of the Legislature party' to mean 'Leader chosen by the members of the legislature party and intimated to the Speaker....’ Moreover, Rule 3 of the Rules, 2003 which deals with the duties of Leader of legislature party under subrule (2) provides that in case the name of the whip is not provided to the Speaker within 10 days then the Speaker shall treat the Leader of the Legislature Party as the person authorized to issue direction to a member to vote or to abstain from voting in the House. Thus, looking at the Rules, 2003 it can be said that the term 'Political Party' used in paragraph 2(1)(b) of the Tenth Schedule will include the Legislative Party and the two cannot be separated, especially since it is the Leader of the Legislature Party who is entitled to appoint the whip under Rule 3(2).

QUESTIONS F, G:

The term Legislative Party Leader' has not been defined in the Constitution or in the Tenth Schedule but is defined under Rule 2(e) of the Members of Nagaland Legislative Assembly (Disqualification on Ground of Defection) Rules, 2003 supra. In the present facts, the Leader of the Legislature Party enjoying the support of majority of members of the House is T.R.Zeliang. It is seen from the facts brought to my notice that Mr. T.R.Zeliang commands a majority of 36 MLA's out of 47 MLA's and has always been the Leader of the Legislature Party and, thus, any other person cannot be appointed/ foisted as a Legislature Party Leader especially since the said person does not enjoy the majority support within his own party.

As a natural corollary, the letter dated 02.08.2017 issued by Mr. Apong Pongener, alleged Working President of the NPF, condoning the act of the Legislators would bereft of any effect or significance as Mr. Apong Pongener is not the Leader of a Legislature Party. It is re-iterated that such condonation letter could only have been issued by T.R Zeliang and all other communications issued to the Speaker by persons other than T.R.Zeliang are not binding on the legislators.

QUESTION H:

It has been brought to my notice that there are two Constitutions of the NPF which are allegedly before the Election Commission and on the basis of which the powers of the various functionaries are de-alienated. It is also brought to my notice that both the Constitutions contain a procedure for their amendment which is duly incorporated in Article XVI which provides for a Central General Convention of the Party to be convened and also provides for a majority of two-third of the Active Members present and voting to bring about any amendment to the Constitution.

Thus, any amendment made to the Constitution of the NPF without following the procedure as prescribed in Article XVI is non-est and void ab initio. In case of a challenge as to the validity of the said Constitutions, the Constitution which has been amended by following the due procedure prescribed therein shall prevail over the other.

CONCLUSIONS:

To summarize, my opinion based on the set of facts brought to my notice, is as follows:

i.T.R. Zeliang is the chief whip of the Nagaland People's Front having been appointed by a majority of the legislators vide Resolution dated 04.07.2017. All appointments prior to the date of the Resolution stand overruled. Therefore, the appointment of any other person as the whip is non-est and void ab initio.

ii.The whip issued by T.R.Zeliang is the valid whip and no other whip is valid.

iii.The term 'Political Party' used in paragraph 2(1)(b) of the Tenth Schedule includes the Legislature Party since it is the Leader of the Legislature Party who is entitled to appoint the whip under Rule 3(2).

iv.The condonation letter dated 02.08.2017 issued by the Dr. Shurhozelie Liezietsu's group is not binding on the legislators as it is bereft of any effect or significance. The letter dated 20.07.2017 appointing Kuzholuzo Nienu as the NPF Legislature Party Leader by Dr. Shurhozelie Liezietsu is invalid and void ab initio.

vi.The Constitution which has been amended by following the due procedure prescribed therein shall prevail over those amendments made without following the due procedure as laid down in the NPF Constitution.

Issued in public interest by:
Media Cell, CMO Nagaland
21.10.2017