CLEOFATO ALMEIDA COUTINHO
Goa has always been a pioneer in the shifting of political loyalties. The anti-defection law was chiselled in Goa in the late nineties. Ravi Naik v. Union of India and Dr Kashinath Zalmi v. State of Goa pro vided the necessary legal fodder for implementing or manipulating the anti-defec tion law. The Association for Democratic Reforms, in its report (2007–22), claimed that 60 per cent of MLAs in Goa switched sides, setting a unique record unparalleled in the history of democracy. From the split of the United Goans Party in 1967 over leadership issues into the Se queira and Furtado groups, we have come a long way to mass defections driven by greed for money and power, leading to treachery. The remedy has become worse than the disease.
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The opposition parties are crum bling under the weight of defections. With the “split” provision removed from the anti-defection law, the “merger” provision has cre ated political chaos in the country. MLAs and MPs have made mincemeat of the law, as the two-thirds majori ty required for a merger is now interpreted merely as two-thirds of the legislature party. The poorly drafted merger provision under sub-para graph 4(1) of the anti-defec tion law saves an MLA or MP from being disqualified when their original political party merges with another polit ical party. Sub-paragraph 4(2) states: “For the purpose of sub-paragraph (1) of this paragraph, 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 con cerned have agreed to such merger.” The critical test is whether sub-paragraphs 4(1) and 4(2) are to be read together or separately. The Goa Speaker read them sepa rately, and the Bombay High Court gave a literal reading to the flawed law.
After the West Bengal elec tions, two-thirds of the TMC MPs claimed to merge with an obscure North-Eastern party. Six of the nine UBT Shiv Sena MPs shifting to the Eknath Shinde faction, and seven Rajya Sabha AAP MPs quitting and joining the BJP, all claimed a merger through the “Goa model”. The merger edifice now hinges on the in terpretation of the “original political party” and wheth er a “merger” can happen when only the legislature party claims it. For almost two decades, the country has been hunting for an an swer to whether MLAs and MPs alone are enough for a merger. There appears to be a sil ver lining. In the 2023 Ma harashtra case, Subhash Desai v. Principal Secretary, Governor of Maharashtra, the Supreme Court observed that legislators alone do not constitute the party. The Constitution Bench, led by then Chief Justice of India D.Y. Chandrachud, dealt with the issue while keeping the spirit of the people’s verdict in mind. The Court stated: “There are no two ways about it. The Tenth Schedule would become unworkable if the term ‘political party’ is read as legislature party.” The Bench further held that “to read a political party as legislature party would be contrary to the plain lan guage of the Tenth Schedule”. The Chief Justice went on to add: “This is not the system of governance that is envis aged by the Constitution.
In fact, the Tenth Schedule guards precisely against this outcome.” The TMC has been pressing this very argument before Speaker Om Birla: that the TMC legislature party is an emanation of the original TMC. The Supreme Court’s view is loud and clear that no in terpretation of sub-para graphs 4(1) and 4(2) of the anti-defection law can mean that MPs or MLAs alone can merge with another party. However, the Mahar ashtra case did not involve a “merger”, as the Eknath Shinde group claimed to be the real Shiv Sena. That is sue could have been settled had the Supreme Court act ed with alacrity in the first Goa case, when two-thirds of the Congress legislature party claimed a merger with the BJP in 2019. The Bombay High Court ruled that two thirds of the Congress legis lature party merging would meet the requirements un der sub-paragraphs 4(1) and 4(2) of the anti-defec tion law. In December 2022, when the matter came up before the Supreme Court after the 2022 elections, Jus tice M.R. Shah observed: “To what extent has our morali ty gone down?” How many times the first Goa case was adjourned before it was de clared infructuous is now history. The story repeated itself after the 2022 elections, as another two-thirds of the Congress legislature party crossed over to the ruling side, and the same point is once again before the Su preme Court. We are only a few months away from the next elections. If the matter is not decided, the country will miss yet another oppor tunity to contain the political chaos created by the misin terpretation of the deemed merger provision. The fail ure of the highest court to finally decide the issue may have emboldened the second set of defectors to contribute their bit to dumping the peo ple’s mandate into a pit.
The recent political chaos across the country, as the ruling party chases a two-thirds majority, may not have hap pened if the Supreme Court had shown urgency and alac rity on this critical issue. This issue is extremely important for preserving the very foun dation of the party system and parliamentary democra cy, which the Supreme Court has termed a basic feature of the Constitution. The highest court cannot be seen as ab dicating its responsibility on such crucial matters. The merger provision has played havoc with elector al mandates, with loyalties shifting solely for coveted appointments and mone tary benefits. The chicanery and intrigue required for such machinations must be undone by an authoritative pronouncement from the highest court, applying its Constitution Bench wisdom to a case involving a merger. Goa has been a playground for the anti-defection law, but it would be fitting if the answer came from the pend ing Goa case. (The writer is a desig nated Senior Advocate, po litical thinker and taught constitutional law for three decades.)
