Para 4 of the Schedule X of the Constitution reads:-
4. Disqualification on ground of defection not to apply in case of merger.—
(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group,
And from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes 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 concerned have agreed to such merger.”
A plain reading of the above para 4 shows that: 1) there should be a merger of one political party with another 2) a member of a house claims that he and other members of his original political party have become members of such other political party or, as the case may be, of a new political party formed by such merger; or they have not accepted the merger and opted to function as a separate group and 3) the merger shall be recognized ‘if, and only if, not less than 2/3rds have agreed to the merger’.
It is so simple. The requirement of 2/3rds agreeing, validates the claim that there has been a merger. If 2/3rds do not agree, the merger is not recognized in the house. The 2 clauses are fully interconnected by the words ‘For the purposes of sub-paragraph (1)’ and the words ‘if, and only if’.
What the entire para 4 means is that ‘if any member claims that his party has merged with another, he and his colleagues should constitute 2/3rds of the Legislature Party.
Legislature Party and Original Political Party are not distinct entities. The expression Legislature Party did not start with the introduction of Schedule X para 4; it was always there. The elected members of any political party are and were always referred to as Legislature Party.
The words ‘Legislature Party’ means ‘the group of members of a particular party who have been elected’. Legislature Party is not a separate and distinct party by itself.
To say that Legislature Party and Original Political Party are 2 distinct entities is, I am sorry to say, with due respect, not the correct interpretation.
The words ‘if and only if’, show that the merger mentioned in clause (1) will be recognized in the legislature only if 2/3rds of the members of that party in the house agree to it. To say that ‘even if there is no merger of the original political party and yet, it has to be deemed that such merger has taken place, if and only if, not less than two-thirds of the members of the legislature party agree to such a merger’, is not correct.
The word ‘deemed’ refers to the recognition of the merger within the house.
This is further corroborated by the sub-clause (b) of clause (1), which contemplates a situation where members have not accepted the merger and opted to function as a separate group.
The approach in interpretation, in case of doubt, should be such as to fulfill the purposes of a statute. The purpose of the statute is to prevent defection.
To say that the members of a Legislature Party can defect without the merger of the Original Political Party, with due respect, simply encourages defections.
To be disjunctive in nature or to operate in different fields, the sub para (2) had to have some words like ‘even if there is no merger of the main political party.’
The purpose of para 4(1) is to protect from disqualification when there is a split in the original party, and the purpose of sub para (2) remains the same. The judgement is caught up in the cobweb of precedents and lawyers submissions. A straight bird’s eye view of para 4(1) would have yielded much better results.
The judgement is impeccable in the mathematical or scientific sense but law is not a pure science; its life is not logic, its purpose is justice, not mere accuracy.
Some years back in this very Court, when someone was disqualified by giving 2 days notice instead of prescribed 7 days, he complained of violation of principles of natural justice, but the judge was bold enough to say that ‘natural justice is not for perpetrating injustice’.
Precedent, and I dare say, even judicial discipline is always subordinate to the fulfillment of justice. It is said that Parliament fixed the limits of political morality at 2/3rds. The morality is contained in both sub clauses (1) and (2) of para 4. If at all there was a doubt the Court can even micro legislate interstitially; this is well known.
There is an anxiety with accuracy and thoroughness which is to be appreciated but the purposes of justice are more important than all that.
The mischief sought to be remedied is finally left at large in the anxiety to interplay and reconcile a variety of judgements and submissions. A review or an appeal is certainly called for.
(The writer is an advocate, holding a PhD in Law)
