PANAJI
The Bombay High Court at Goa on Thursday dismissed the pleas filed by the Congress and Maharashtrawadi Gomantak Party (MGP) to overturn the order of the Speaker, who had dismissed their pleas for disqualification of the twelve MLAs (ten Congress and two MGP) who had defected to the BJP.
The High Court in its judgement took the side of the Speaker and said that the MLAs were protected from being disqualified by the section of the anti-defection law, which states that if two-thirds or more legislators switch sides, it will be deemed that the original political parties have also merged.
The case centred around the interpretation of section 4 (2) of the Anti Defection Law.
The section in question states that no legislator may be disqualified on grounds of defection in case of a merger where his original political party merges with another political party and he claims that he and any other members of his original political party have either become members of such other political party or, of a new political party formed by such merger or have not accepted the merger and opted to function as a separate group.
The section further states that “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 Congress in its arguments before the court had said that for a valid merger to take place it needs to pass the ‘twin test’ of both the merger of the original political party as well as the consent of at least two-thirds of the legislators of such a political party.
However, the High Court didn’t agree with the view.
“The petitioners are not justified in contending that sub-paragraphs (1) and (2) of paragraph 4 of the said Schedule are interlinked, interdependent and the necessity of not less than two-thirds members of the legislature party agreeing to the merger is an additional condition for the merger of the original political party,” the bench of Justices Manish Pitale and R N Laddha ruled.
“This distinct and independent field contemplates a situation where there is no merger of the original political party and yet, it has to be deemed that such a merger has taken place, if and only if, not less than two-thirds of the members of the legislature party agree to such a merger. Once the said condition is satisfied, the deeming fiction operates which is protecting the member of a House from disqualification…,” the High Court ruled.
“It is correct that once the deeming fiction comes into operation, even when there is, in fact, no merger of the original political party, we have to proceed on the basis that such merger has taken place by operation of the deeming fiction, so long as not less than two-thirds members of the legislature party agree to such a merger,” the court ruled.
“The purpose of paragraph 4 of the said Schedule is to protect a member of the House from disqualification, which otherwise he would have suffered because of having voluntarily given up membership of his original political party,” the court said.
The Advocate General, who was defending the Speaker’s decision argued that were the twin test requirements to be mandatory, then it would result in a situation where even if a political party decided to merge with another, they would be held up if their legislators do not agree to such merger even in a single state of the country leading to an unworkable situation.
“It becomes clear that merger of -- for instance-- an original political party, which is a national party with another political party which is also a national party, would not take place, even if factually both political parties have agreed for a merger, only because not less than two-thirds members of the legislature of such political parties in even one legislature in the entire country have not agreed for such merger,” the High Court said.
“The interpretation by emphasising on the ‘twin test’ for the merger of the original political party with another political party, proceeds on the fallacious basis that the purpose of paragraph 4 of the said Schedule is concerned only with the merger of political parties. The purpose of paragraph 4 of the said schedule is to protect a member of the House from disqualification, which otherwise he would have suffered because of having voluntarily given up membership of his original political party,” the HC said.
“When [the section] is understood in the correct perspective, it becomes clear that the sub-paragraph (2) thereof addresses a distinct situation, when a member of a House is protected from disqualification in a situation where there is no merger of the original political party with another political party, but two-thirds or more members of the legislature party agree for the merger, thereby bringing into operation the deeming fiction, which in turn triggers the protection from disqualification available to members,” the High Court ruled.
With regard to the question of the interpretation being against the spirit of the anti-defection law, the High Court ruled that it would be best left to the wisdom of the legislature.
“Much has been said about the interpretation canvassed on behalf of the respondents being antithetical of the very object of introduction of the Tenth Schedule to the Constitution, but we are of the opinion that the object of introduction of the Tenth Schedule to the Constitution is not only to prevent unprincipled defections, but to lay down the minimum standards of political and Constitutional morality in the backdrop of merger of political parties and to lay down conditions in which a member would either attract disqualification under paragraph 2 of the said Schedule or such member would stand protected from disqualification under paragraph 4 of the said Schedule,” the High Court ruled.
“The Supreme Court held that it was for the legislature to lay down the threshold of political morality while introducing the Tenth Schedule for addressing the evil of unprincipled defections by elected members of political parties. It was held that the Courts would have nothing else to go by, except the legislative wisdom in this arena. The perception of the legislature regarding political proprieties and moral standards was recognised by the Supreme Court, while emphasising that there was a need to provide for ‘floor-crossing’ on the basis of honest dissent,” the High Court said.
“It is for the Parliament to lay down such standards of morality, including the threshold of numbers that would determine as to whether a merger and consequent giving up of membership of a political party by an elected member would not result in disqualification from membership of the House. As long as Parliament in its wisdom has determined the threshold of morality of at least two-thirds members of the legislature party agreeing for merger, the Courts have nothing else to go by, except the legislative wisdom of the Parliament to determine such a threshold of political morality in that context,” the High Court said.
