Anti Defection Law: The Goa Angle
The Anti-defection law deserves a new look, states Adv. CLEOFATO ALMEIDA COUTINHO
With Babush Monserrate and Vishwajeet Rane joining the Congress party, what has been speculated, has happened. Babush Monserrate who was elected on the UGDP ticket, has not resigned his Taleigao Assembly seat, while Vishwajeet Rane has quit the Valpoi assembly seat to render the Assembly on the Congress party ticket. The debate on whether Mr. Monserrate should have resigned and/or whether the UGDP could be merged without the UGDP as registered with the Election Commission of India, may look academic, but such debates contribute to the evolution of the law. The North Eastern states and the State of Goa have contributed much to the evolution of the anti-defection law in the country. Since the states were small, the legislature parties were small, and splinter the groups, smaller. It became easy to manage splits, and, instead of individual defections, groups defected. The net result is that the concept is split, is done away with. Our state must also be complimented for showing another way – of members resigning and re-contesting to become ministers, since the anti-defection law does not bar such members from being MLAs. The Parliament may take note of that syndrome, now that Karnataka has followed us in that direction. The appropriate remedy may be, barring such members from being members of the house for a fixed period of time.
That Goa has been a laboratory for various tests under the anti-defection law, has never been in doubt. The Supreme Court judgement in the Ravi Naik (AIR 1994 SC 1558) case settled the matter pertaining to the split (then existing in the Xth Schedule). In the matter of Dr. Luis Proto Barbosa (AIR 1992 SC 1812), the Hon’ble Supreme Court held that the exemption to the Speaker on the Xth Schedule would not be available when the Speaker defects from the party to which he belonged, and resigned from the office of the speaker thereafter. In yet another judgement, Dr. Kashinath G. Jalmi (AIR 1993 SC 1873), the Supreme Court held that the Speaker of the assembly has no power of review.
A new dimension has been added by the case of Mr. Monserrate by him not resigning from the Taleigao seat and continuing as the member of the house. Probably, Mr. Vishwajeet Rane is unable to take such a bold stand. His father, being the Speaker of the House and in case of a disqualification petition, a father sitting on his son’s disqualification hearing would be another first for our State, which has been rightly avoided.
As I pen these lines, it is not clear whether the case is that of a merger of the UGDP (original political party) as defined in the Xth Schedule or a case of joining the Congress party. In either of the two cases, the matter has to be referred to the decision of the Speaker, who functions as a tribunal in the matter pertaining to disqualification under the Xth Schedule. It is only the State Congress President who has claimed the merger, while Mr. Monserrate has preferred his joining to a ‘return of the prodigal’. What that means may be known only if one gets to know all about his communication with the Speaker.
The anti-defection law has a number of lacunae. It could be argued disqualification in case a member joins another party is automatic, and that there is no escape from that without a case for merger being made out. But then, the matter has to be adjudicated by the Speaker. And, unless the speaker adjudicates on the issue, a member functions as an MLA.
The other debate is on the question of the impact of a merger, if a stand of a merger is taken. Two issues come to fore, one, whether the merger can take place without the UGDC as registered with the Election Commission of India taking a decision of its merger. Sec. 4 saves a member from disqualification, in case the original political party merges with another political party. However, at clause 2 of paragraph 4 of the Xth Schedule, it is stated, “the merger of the original political party of a member shall be deemed to have taken place if, and only if, not less of two-third of the members of the legislative party concerned, have agreed to such a merger”. The argument is that two-thirds of the legislature party ought to ratify the decision taken by the original political party (parent party). This argument is on the basis of the use of the words ‘original political’ party in the Xth Schedule and the demeaning provision using the legislature party.
In case the argument that the original political party has to first take a decision of merger, which can only be ratified by the Election Commission of India, would mean that the Election Commission Of India should also take a decision on the merger which requires ratification by the two-third members of the legislature party. The Xth Schedule does not speak of the Election Commission of India. The words ‘original political party’ and ‘the legislature party’, though defined in the Xth Schedule, has no reference to whether the representation of the Peoples Act, under which the parties are registered and the Election Commission of India, which registers the parties. In the case of Mayawati v/s. Markadeya Chand, Justice Thomas who held certain MLAs belonging to the Bahujan Samaj party being disqualified, said that in case of split, two conditions should apply 1) that a claim that the split in original political party, resulting in the constitution of a group and 2) that group ought to be one-third of the members of such a legislature party. That the party as registered in the Election Commission of India should split, which should be reflected in the legislature party, has not been held to be a pre-condition, even for split. In the same judgement, Justice Srinivasan holds that the original political party and the legislature party be distinct. That was the question of the split, which no longer exists in the Constitution.
If the deeming provision for a merger is taken to account, it could be construed that for the purposes of anti-defection law, that the merger has taken place and that the group constituting two-thirds would not suffer disqualification. In the case at hand, the member being the sole member of the party, could claim such a merger to save his disqualification. But then, the original political party as registered with the Election Commission of India, shall continue to be so registered.
The problem with the law is the adjudicatory process created through the office of Speaker. The Hon’ble Supreme Court has held the speaker to be holding a high, important and ceremonial office, he being very embodiment of propriety and impartiality on the basis of position of speaker in England, without taking into consideration the realities in our state and country.
The Anti-defection law deserves a new look with the adjudicatory machine handed over to an impartial body, probably the High Court, to give a time bound judgement.
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Some thoughts about Nadia
By Sajla Chawla
Question: Why did Nadia keep Ratol in her house?
Answer: Because she was scared of Mickey Mouse!
Mobile phone messages of this kind have been doing the rounds in Goa; and Goa is a deeply religious state. Both the large communities, Catholics and Hindus, visit their churches and temples very dutifully.
All religions and spirituality teach us that death is the only truth. All else is ‘maya’ or illusion. In the ancient story of the Trojan War, Achilles the Greek hero commits the gravest of all sins, as believed by the Greeks – the sin of disrespecting the body of the Trojan warrior, Hector, whom he has just defeated in war. Achilles drags the body, tied to his horse and desecrates not just Hector, but ‘death’ itself.
We seem to be doing something similar to Nadia. Of course she did not have the stature of a Trojan hero, but the point is not her greatness or ordinariness. The parallel is in ‘death’ itself, which unites us all and is our common fate, no matter how great or small we might be.
In all civilisations, the dead are duly buried, cremated or otherwise laid to permanent rest, with elaborate rituals and rites. Death has such a finality and sanctity that wisdom tells us not to revile or criticise the dead. They have gone away from our realm to another, or into nothingness; we do not know.
Most of us, including me, did not know Nadia. Whatever her virtues or vices might have been, she is a person who chose to end her life and one does that only in an extreme situation of helplessness and angst, or when the known world itself seems so alien that an unknown death seems a relief.
People who are devious, street smart and cunning do not commit suicide. It is only the ones who are so out of sorts with the way their life turned out – because of their own choices or because of others – who take such a step. When they feel they cannot change their plight, they would rather die than compromise with the existing situation. Maybe if Nadia had a confidant or a real friend, she could have made the choice to live and fight it out.
Since we do not know, we have no right to pass judgement. More important, it is inhuman to mock and scorn the dead, as these text messages seem to be doing. It reveals a certain callousness towards other human beings, crassness, and an inhumanity that we all should be ashamed of.
A dead person is not a specimen on a laboratory table, for us to dissect or study and then pass profound moral judgements. What has hardened us so much that we can no longer feel what the war poet, Owen, terms ‘the reciprocity of tears’ or the ability to empathise and grieve at the loss or suffering of another human being? If we cannot feel compassion, let us at least not make the life and death of a young woman a mockery.
Often many of us firmly lock the skeletons in our own cupboards, sit on high moral pedestals and pass moral decrees. A similar thing could happen to us, or our children, or someone we care for. A small quirk of fate; a wrong choice; or just chance could have put any of us in a similar situation. We are just lucky that it did not.
Or is it that we get voyeuristic and sadistic pleasure out of prying into other people’s lives, if only to feel complacently safe that it did not happen to us? Maybe that is the reason Reality TV is so popular in our society. It gives people a chance to live vicariously without ever personally taking any risks; sitting smug and vindicated in their living rooms while others suffer and cry.
We are all meagre, small, frail and mortal people. Let us recognise the fallibility in each of us and be more forgiving and compassionate to the people who could not cope with what life brought their way. We would not find it so easy to ridicule Nadia if we all realise our own mortality.
