Instead of finding fault with the order of the Speaker, Assembly and the High Court judgment, the political parties need to put their house in order

An apprehension is being vented that the judgement of the Bombay High Court bench at Goa upholding the order of the Speaker Goa Legislative Assembly with respect to merger of breakaway faction of Congress Legislature Party in the BJP may open floodgates for defections.  The order of the Speaker under sub-paragraph (2) of paragraph (4) of the Tenth Schedule has been upheld by the High Court in its judgment delivered on February 25. The court held that under sub-paragraph (2) of paragraph 4, the merger of this group of Congress MLAs with the BJP is deemed to be a merger of the Congress Legislature Party with the BJP and, therefore, the disqualification on ground of defection shall not apply to such members under the Tenth Schedule. 

The High Court, after examining the submissions made before it, held that the “petitioners have not been able to make out a case for interference in the impugned orders passed by the Speaker”.  It may be recalled that the Assembly Speaker, Rajesh Patnekar, had last year dismissed two petitions seeking disqualification of ten out of twelve MLAs of the Congress who defected and joined the BJP in view of the express provision of sub-paragraph (2) of paragraph 4. The High Court ruled that the defections ‘cannot be said to be militating against the object of introduction of the Tenth Schedule of the Constitution on the touchstone of political and constitutional morality’.   The court further said that of the 12 MLAS, 10 had defected from the Congress.  The court took note of the submission of concerned MLAs who claimed that since they constituted two-thirds of the strength, it was a valid merger and not a defection under the Tenth Schedule and observed that the ‘petitioners have not been able to make out a case for interference in the impugned orders passed by the Speaker’.

Expectedly, the Chief Minister, Goa, welcomed ‘the decision of High Court in dismissing the appeal filed by Congress and MGP against merger of 12 MLAs (including two MLA of MGP) into the BJP Legislature Party’. He also said that ‘democracy and constitutional mandate has prevailed over the smear campaign.’  Disappointed, the Goa Congress reacted: “It is going to set a bad precedent, not only for the Congress but all political parties in the country, as after an election, a few MLAs can come together and take a decision to join another party.’  Learning a lesson from such wholesale defections, the Congress administered an oath of loyalty to its poll bound candidates for election to the new Assembly!  [If such an oath of loyalty could prevent defections, the law makers, in their sagacity, would not have enacted the anti-defection law.]

The anti-defection law was enshrined in the Constitution by the 52nd Amendment and later further reinforced by the 91st Constitution (Amendment) Act, in 2003.  The sum and substance of these constitutional amendments is that a member of the legislature, whether of the Union or the State Legislature, shall be disqualified if he is disqualified under the Tenth Schedule.  The precise grounds for disqualification of a legislator under the Tenth Schedule are, if he has voluntarily given up the membership of such political party, or if he votes or abstains from voting in the House contrary to the direction or the whip issued by the political party of which they are members.

However, there is an exception and a ponderous one.  In the case of merger of not less than two-thirds of the members of the legislative party with another party, or formation of a new party, the anti-defection law will not apply. The competent authority to decide the question of disqualification is the presiding officer, that is, the Speaker, which, after the judgment of the Supreme Court in the Kiho to Hollohan versus Zachilhu and others, can be a subject of judicial review.

There is some resentment especially among those who appealed against the decision of the Speaker but found no relief from the High Court.  No doubt, every political party is empowered under its constitution to enforce discipline for attaining its political goal. Without discipline, political parties would be reduced to a mere horde of power-hungry people bereft of any sound political moorings and identity.   The people too expect that the ‘matdaan’ given by them is not traded or betrayed. The rampant and incessant defections by legislators are indicative of a brazenly power-hungry politics devoid of ideologies of the political parties, which needs to be contained, if not banished altogether.

The distinguishing features of political parties- often so powerfully flaunted-have disappeared and replaced by the wholesale and thriving politics of defection. To curb the growing menace of horse trading leading to political instability, the law makers while enshrining a law in the Constitution for curbing defections, also made provision of merger of political parties or formation of a new political parties if not less than two-third members so choose, putting such a merger immune from the disqualification of defection.  When the Constitution enshrines the principle of merger of two-third members of a legislature party into another political party or formation of a new political party by such members, they cannot be disqualified in view of the express constitutional immunity. 

The Court cannot go into the technicality of the merger of such two-third members with respect to the date, timing, venue and the record of the resolution passed by them prior to joining another party or forming a new party.  It is adequate and suffice if they voluntarily do such an act of merging-not less than two-third of the total legislative membership-into a new party or forming a new one.  The principles of interpretation are well settled and brook no ambivalence. In view of the express constitutional or legal provisions, the court cannot read into it a contrary meaning vis a vis what the law makers have explicitly provided.

However, this also raises a fundamental question of intra -party democracy, which is more often at the core of defections.  Obviously, the law makers did not want a dictatorship within the political parties while fully conscious of the need for maintaining and preserving party discipline and ideology.  They very conscientiously enshrined the principle of valid split if not less than two-third members merge with another political party or form a new one. Instead of finding fault with the order of the Speaker, Goa Assembly and the judgement of the High Court, the political parties need to put their house in order and the critics need to revisit the provisions of the Tenth Schedule.

(The writer is former Additional Secretary, Lok Sabha and member, Delhi Bar Council. The views expressed are personal.)