डॉ. उदय वारुंजीकर
हा लेख मागील ४८ तासांत घडलेल्या अनेक नाट्यमय घडामोडी व महाराष्ट्रात निर्माण झालेल्या अभूतपूर्व परिस्थितीशी संबंधित आहे. ही परिस्थिती पाहता जनतेच्या मनात नानाविध प्रश्न येत आहेत. या पार्श्वभूमीवर, महाराष्ट्र विधानसभेने अवलंबलेली कार्यपद्धती, कायदेशीर तरतुदी, राज्यघटनेतील तत्त्वे इत्यादींचा ऊहापोह करणे सयुक्तिक होईल. भारतीय राज्यघटनेतील तरतुदी पाहता, विशेषत: अनुच्छेद १७० अंतर्गत, विधानसभेच्या रचनेबाबत तरतूद आहे. विधानसभा; तसेच विधान परिषदेचे संपूर्ण कामकाज कसे चालावे, हेदेखील या तरतुदीत स्पष्ट केले आहे. राज्यघटना-१९५०च्या प्रकरण तीनमध्ये विधानमंडळाबाबत तरतुदी आहेत. गेल्या दोन दिवसांतील राजकीय घडामोडी पाहता, अनुच्छेद १७४(२)(ब)चा विचार महत्त्वाचा ठरेल. त्यात विधानसभेच्या मुदतीबाबतची तरतूद आहे. अनुच्छेद १७४(२) यातील तरतूद राज्यपालांना विधानसभा विसर्जित करण्याचा अधिकार देते. या तरतुदीत खूप पूर्वी सुधारणा झाली आहे. त्यानुसार, विधानसभा विसर्जित करण्यासाठी राज्यपालांच्या अधिकारांवर कोणत्याही अटी किंवा बंधने नाहीत. या अनुच्छेदातील तरतुदींचा अर्थ लावताना सर्वोच्च न्यायालयाने नमूद केले आहे, की विधानसभा विसर्जित करण्याचा कोणताही मूलभूत अधिकार नाही. राज्यपालांनी मुख्यमंत्र्यांच्या सल्ल्यानुसार काम करावे, असेही म्हटले आहे. हे लक्षात घेतले, तर मुख्यमंत्री राज्यपालांना सल्ला देत नाहीत, तोपर्यंत विसर्जन होणार नाही. राज्यघटनेच्या अनुच्छेद १६३ अन्वये राज्य मंत्रिमंडळाने राज्यपालांना मदत करणे आणि सल्ला देणे अपेक्षित आहे; तथापि गेल्या दोन दिवसांत उद्भवलेली राज्यातील परिस्थिती पाहता, मंत्रिमंडळाने राज्यपालांना मदत व सल्ला देण्यासासारखी परिस्थिती उरलेली नाही. विद्यमान मुख्यमंत्री उद्धव ठाकरे यांच्याविरुद्धचा अविश्वास प्रस्ताव किंवा राजीनामा या गोष्टी भविष्यात घडणार आहेत. सध्या शिवसेना विधीमंडळ पक्षाचे प्रमुख कोण, हे ठरवले जात नाही, तोपर्यंत पुढील कायदेशीर चित्र स्पष्ट होणे कठीण आहे.
आजपर्यंत शिवसेनेबाबत मूळ राजकीय पक्ष कोणता, असा कायदेशीर मुद्दा न्यायालयापर्यंत पोहोचलेला नाही. आता घडणारे राजकारण पाहता, हा प्रश्न न्यायालयात पोहोचण्याची अधिक शक्यता आहे. म्हणजेच, आताच्या परिस्थितीत राज्यपालांनी विधानसभा विसर्जित केली, तरी त्याला न्यायालयात आव्हान दिले जाऊ शकते. त्यानंतर राज्यपालांनी केलेल्या विसर्जनाच्या निर्णयाचा कायदेशीर ऊहापोह उच्च न्यायालय आणि / किंवा सर्वोच्च न्यायालयात होऊन, योग्य तो निर्णय येण्याची शक्यता आहे. दुसऱ्या शब्दांत, विधानसभा थेट विसर्जित करणे सोपे नाही आणि ते सर्वोच्च न्यायालय किंवा मुंबई उच्च न्यायालयाच्या निर्णयाच्या अधीन असेल, असे चित्र सध्या निर्माण होत आहे. याचे कारण, सध्या शिवसेनेचा विधीमंडळ पक्षाचा नेता कोण? शिवसेनेने त्यात बदल करून नव्याने नेमलेला नेता, की बंडखोरी करणाऱ्या आमदारांनी स्वाक्षरीसह ठराव करून नेमलेला नेता? विधानसभेने कोणत्या नेत्याची अधिकृत नोंद करून घेतली? ज्या बैठकीत विधीमंडळ पक्षनेता बदलण्याचा निर्णय घेण्यात आला, ती बरोबर की चूक? बैठकीचा काही अजेंडा होता का? बैठक बोलावणाऱ्याला तसे अधिकार होते का? असे अनेक प्रश्न आहेत. दुसरा महत्त्वाचा प्रश्न म्हणजे, इतक्या मोठ्या संख्येने शिवसेनेच्या आमदारांनी बंडखोरी केली असेल, तर त्यांना पक्षांतर बंदी कायदा लागू होईल का? त्याबाबत विधीमंडळ पक्षाचे दोन तृतीयांश सदस्य असण्याला अपवाद असेल, अशी तरतूद राज्यघटनेत आहे. ती सदस्यसंख्या दोन तृतीयांशपेक्षा कमी असेल आणि त्या सदस्यांनी इतर राजकीय पक्षात सामील होण्याचा निर्णय घेतला, तर त्याला पक्षांतर म्हणतात. राज्यघटनेत याबाबत झालेली दुरुस्ती दहाव्या सूचीत समाविष्ट करण्यात आली आहे. त्यानुसार, दोन तृतीयांश सदस्य दुसऱ्या राजकीय पक्षात विलीन होऊ इच्छित असतील, तर त्यांना पक्षांतर बंदीच्या कारणाखाली अपात्र ठरवले जाऊ शकत नाही. हे दोन तृतीयांशचे प्रमाण सरकारला स्थिरता मिळावी या उद्देशाने आहे. आजच्या घडीला शिवसेनेकडे विधानसभेचे ५५ आमदार आहेत. त्यातील दोन तृतीयांश, म्हणजे ३६ इतके आमदार एकनाथ शिंदे यांच्यासोबत आहेत का, हा सर्वांत महत्त्वाचा प्रश्न आहे. दोन तृतीयांशपेक्षा जास्त सदस्य नसल्यास बंडखोरी करणाऱ्या सदस्यांवर अपात्रतेची कारवाई होऊ शकते.
पक्षांतराच्या कारणास्तव सदस्य अपात्र होण्याच्या संदर्भातील मुद्दा न्यायालयात जाऊ शकत नाही. सदस्यांच्या अपात्रतेच्या संदर्भात मुद्दा उद्भवल्यास, सभागृहाच्या अध्यक्षांनी दिलेला निर्णय खूप महत्त्वाचा ठरतो. तो निर्णय अंतिम असेल, अशी तरतूद आहे. याबाबतीत विचार करता, विधानसभेचे नेतृत्व सभागृहाच्या अध्यक्षांनी करणे अपेक्षित होते; मात्र आजपर्यंत विधानसभेच्या अध्यक्षांचीही निवडणूक होऊ शकलेली नाही. एका उपाध्यक्षांची निवड झालेली आहे. अनुच्छेद १८७ अन्वये ते विधानसभेचे उपाध्यक्ष म्हणून काम करू शकतात. मूळ राजकीय पक्ष कोण आहे किंवा त्या मूळ राजकीय पक्षाचे नेतृत्व कोणाकडे आहे किंवा पक्षांतरीत गट आहे की नाही, असे वाद समोर आल्यास ते मुद्दे उपाध्यक्षांकडून हाताळले जातील. त्यानंतरही कायदेशीर वाद निर्माण केले जाऊ शकतात.
दुसरीकडे, शिवसेना या पक्षावर कोण सत्ता गाजवणार, हाही कळीचा प्रश्न आहे. एकीकडे विद्यमान मुख्यमंत्री उद्धव ठाकरे हे मूळ राजकीय पक्षाचे नेतृत्व करीत असल्याचा दावा आहे, तर दुसरीकडे राजकीय पक्षाची सत्ता आपल्याकडे असल्याचा एकनाथ शिंदे यांचा दावा आहे; परंतु या दोन भिन्न संकल्पना आहेत. मूळ राजकीय पक्ष आणि विधीमंडळातील राजकीय पक्ष असे दोन प्रकार आहेत. मूळ राजकीय पक्षाचे नेतृत्व विधीमंडळ पक्षाच्या प्रमुखाव्यतिरिक्त अन्य व्यक्ती करू शकते. विधीमंडळ पक्षाचा प्रमुख हा निवडून आलेल्या सर्व सदस्यांद्वारे निवडला जातो; त्यामुळे शिवसेनेच्या काही सदस्यांनी स्वाक्षरी केलेला ठराव आणि विधीमंडळ पक्षनेत्याबाबतचा बदल योग्य पद्धतीने केला आहे की नाही, हे उपाध्यक्षांना ठरवावे लागेल आणि त्यांच्या निर्णयाला राज्यपालांची अनुमती लागेल. राज्यपालांच्या त्या निर्णयालाही नजीकच्या भविष्यात न्यायालयात आव्हान दिले जाऊ शकते.
शिवसेनेचे विधीमंडळ पक्षप्रमुख एकनाथ शिंदे यांची करण्यात आलेली हकालपट्टी ही वैध की अवैध? त्याबाबत योग्य प्रक्रिया अवलंबली गेली की नाही? त्याबाबतच्या सदस्यांच्या बैठकीत अजेंडा होता की नव्हता? त्या बैठकीत आवश्यक कोरम होता की नव्हता? असेही अनेक कळीचे कायदेशीर प्रश्न उभे राहत आहेत. एकंदरीत, महाराष्ट्रात जी राजकीय उलथापालथ झाली आहे, त्याविषयी राजकीय लढाईपाठोपाठ न्यायालयीन लढाई अटळ असल्याचेच चित्र आहे. राज्यात आज अनेक गंभीर व महत्त्वाच्या समस्या उभ्या असताना, अशी न्यायालयीन लढाई लढण्याची वेळ येणे अत्यंत दुर्दैवी असून, यामध्ये सर्वसामान्य नागरिकच भरडले जाणार आहेत.
(लेखक मुंबई उच्च न्यायालयातील वकील व कायदेतज्ज्ञ आहेत.)
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