Deadlines obliged me to submit this article for publication before the election results were declared. I will therefore focus on possible scenarios between results and formation of a government. I hope that I will be proven wrong. There is no doubt that society stands enraged at the state of affairs in politics in Goa. The lack of commitment and ethics, topped by insatiable greed is truly depressing. Apart from the anti-merger and language issues, no other political development has generated so much heat and noise. Defection is the new buzz word; made more offensive with audacious claims by defectors that they act for the good of the constituency. Defections have become so ingrained that even priests are now advocating gheraoing MLAs who consider defecting. What this is meant to achieve is not very clear as the act of a gherao would not only be ineffective, but itself a breach of law. What is required urgently is a complete overhaul of the “Anti-Defection Law”.
There is general resentment against many of the candidates for lack of principles and morals. There is also complete disarray in the ranks of a fragmented opposition. With the much-anticipated hung assembly, the two major players will hunt for the independents with the BJP having an edge, the groundwork being already in place. If the magic number remains elusive, (or even if achieved), manoeuvres to dismantle pre-poll alliances will be launched. Again, already in progress as reported in the press with stories of parleys in wildlife resorts. And finally, the defections; the frogs now have a free hand with the recent HC judgement which reduced the anti-defection law to garbage. Candidates were being corralled into resorts like so many prized heifers to prevent poaching. Attempts to pre-empt defection with pre-poll visits to temples, churches and mosques were farcical. So, what did the HC say on Feb 25. about the defections?
It held that the “Indian National Congress (INC) members in the Goa assembly, who had defected to the BJP following the last elections, were exempt from disqualification under para 4(2) of the Tenth Schedule of the Constitution, the “Anti-Defection Law”. This para in simple language, states that if a party ‘A’ merges with another party ‘B’, with two thirds of party ‘A’ agreeing with the merger, then MLAs shall not be considered defectors and therefore outside the ambit of the anti-defection law. Hence the provisions of para 4 will not apply. Since 10 of the 15 members (2/3) of the INC chose to join the BJP, they were declared exempt from being labelled defectors. According to legal luminaries, this is a clear example of conveniently misreading the provisions of the law. When analysed carefully, the law requires a sequence of events before exemptions can be made applicable.
First and foremost, a merger of party ‘A’ has to take place with party ‘B’. It cannot and should not be “deemed” to have occurred. Secondly, at least two-thirds of party ‘A’ MLAs have to state that they agree with the merger. Only if these two events have occurred can a member of the defecting group claim exemption from the provisions of the anti-defection law and disqualification. In the present case, the question is: – did the CLP merge with the BJP? The answer is a resounding “NO”. Did two-thirds of the defecting group agree with this “deemed” merger. There is no record of this having taken place. What did happen is 10 members of the elected group of 15 INC MLAs walked out of the party for shameless reasons which were self-evident from subsequent events. Ministries and Chairmanships were up for grabs, and distributed at the largesse of the BJP as rewards.
The HC chose to overlook/misread these facts and stated 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 original political party the INC, with the BJP. Therefore, these members are protected under paragraph (4).” There is only one way to counter such a judgment and eliminate the menace of defections; and gheraoing the defectors does not appear to provide that solution. The judgment must be vigorously contested in a higher court by seasoned and experienced lawyers. Secondly, and more importantly, there has to be an energetic campaign, lobbying to amend the anti-defection law and plug the loopholes. You cannot, for example, have a law where the speaker, who is entrusted with making a politically loaded decision, is not bound by any time frame. He is obviously going to politicise his verdict, slant it in favour of his sponsors, or render it irrelevant; as occurred in this case. The power to adjudicate must be shifted to an independent authority and time bound. The problem is that this must be pursued by the most aggrieved party, the INC, and a society which has a short memory. But do the “generals” in the Congress party like Rahul Gandhi have the stomach for such a fight; after all, tomorrow they may be at the receiving end. Look at how lightly they let off the BJP on the Pegasus issue and made no noise over the NSE scam.
A long time ago, shortly after my return to Goa, I was invited by a friend for dinner at a starred hotel. To entice me to accept, he promised he would arrange a special item on the menu. When it arrived, I was informed that it was “jumping chicken”. Let us hope that our elected frogs are not converted to “jumping chickens” to be devoured by greed and exited the following day.
(The writer is a founder member of VHAG)
