It is defection in the proverbial sense but Congress is yet to file a disqualification petition against them before the Speaker. Now Congress, on November 13, declared that they will be filing a petition against them but they do not seem to have a strong answer as to why there was such a delay.
They did say that the delay was caused due to accumulation of some documents but that argument is not acceptable. What sort of papers did they need? The first and foremost thing they required to file the disqualification was to prove that the respective MLAs had defected. The only proof they required was they visited the Chief Minister and the Speaker and the papers they had presented to them. Why should there be such a delay to get those documents? Those documents were made public there and then. The Legislative Secretary had informed through a special bulletin on September 14, 2022, itself that those eight MLAs had merged their legislative party into BJP. So considering that, Congress could have obtained the required papers immediately. But Congress took its own sweet time. To say the least, Congress former regional president Girish Chodankar and Dominic Noronha had filed disqualification petitions. Of course, they are late as well and one need not be reminded what happens when they are late. The intensity of anger decreases and the will to fight the case goes down. Obviously, that gives scope to suspect the Congress’ own intentions.
Actually these petitions do not carry a significant importance anymore because the Assembly Speaker had given his judgement on a similar case from the past Assembly which was validated by the High Court. In the last Assembly, two of the three MGP MLAs and Congress’ 10 out of 15 had defected to the BJP.
According to them, they had merged their party into BJP which was approved by the Speaker and he had rejected the disqualification petition against them. The then Congress president, Girish Chodankar, had challenged the defection in the High Court which the Court had rejected. Chodankar has challenged the judgement in the Supreme Court and the verdict is awaited. However, that verdict will no longer hold any significant importance as that Assembly itself does not exist anymore. Therefore even if they are disqualified now, those MLAs will not lose anything. But that verdict is required as it will act as a guide for the next case.
For now, the High Court’s verdict is currently used as a parameter based on which the defections are being done. The eight Congress MLAs who defected in the current Assembly have done it by taking support of that same High Court verdict. They have claimed that the merger has been carried out by taking support of the provisions in the Constitution and their claims have been strengthened by the High Court’s verdict. However, some questions still remain unanswered if one were to look at the actual provisions in the Constitution and the incidents which have taken place. It’s important for those answers to come from the court.
As per the provisions, no one can switch from one party to another. The Constitution has approved only the merger of a party. What is particularly notable here is that the merger should be done by the original party and 2/3rd of the Assembly members should approve it. Only then could it be considered as a merger. This means that the 2/3rd of MLAs cannot defect to another party and call it a merger. In reality, ‘approval of 2/3rd members’ provision is being taken advantage of and then it is being called a merger, which is entirely wrong.
There is a need to bring more clarity in this law. The biggest question here is before whom should the merger be done and who should give it approval? As per the current law, the cases of party recognition and mergers are handled by the Central Election Commission. Which means this case too should have been handled by them and it certainly does not look like it.
What is happening is that defected MLAs go to the Speaker, saying a group of 2/3rd of MLAs are merging into BJP and the Speaker is approving their case. This is not right. The Speaker did not check whether the original group had decided to merge the party. The approval is given just by the claims made by 2/3rd of the members. The appropriate decision in this regard should come from the court. For that, the verdict given by the Speaker approving the merger should be challenged in the court. Rather than filing a disqualification petition, Congress should file and challenge this petition instead.
