Presently, one disqualification petition is pending before the Speaker of the Goa Legislative Assembly seeking disqualification of Michael Lobo and Digambar Kamat, the two MLAs elected on the symbol of Indian National Congress (INC). The petitioner is seeking disqualification of these two MLAs under paragraph 2(1) clause (a) of the Tenth Schedule claiming that the MLAs has voluntarily given up the membership of the political party. The petitioner alleges that the conduct of the two MLAs in staying absent from the crucial meetings of the Congress Legislature Party (CLP) convened before the start of the first Assembly session, hobnobbing with the Chief Minister and BJP party functionaries, expressing allegiance to the BJP through express and implied conduct and threatening the Congress party of giving up the party membership amounts to voluntary relinquishment of party membership.
It is an agreed position in law that giving up a membership of a political party is not synonymous with ‘resignation’. When an elected representative of a party demonstrates in full public gaze that he is not bound by the party discipline, works to engineer numbers and lures party MLAs to switches sides, the implied conduct is a pointer to voluntarily giving up the membership of the party. It is no secret that these two senior MLAs of the Congress party were engaged in the political games to gobble the magic two-thirds members.
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Unspeaking Speaker
In addition to the disqualification petition, the Congress party removed Michael Lobo from the position of the leader of the legislature party and communicated the same to the Speaker on July 11, 2022. The Speaker did not act on the communication and blessed Michael Lobo by recognising him as the Leader of the Opposition till September 13. This action of thrusting a Leader of the Opposition by the Speaker is uncharacteristic and unheard of in the history of parliamentary democracy. The audacity of the Speaker to recognise an MLA who is no more the leader of the largest opposition party in the House till the said MLA defects to form the ‘merger’ group is deplorable. This approach should be condemned as a disqualification petition was before the Speaker alleging anti-party activities by the said MLA.
The disqualification petition is gathering dust in the Speaker’s Secretariat from July 11. The direction of the Supreme Court (Keisham Meghachandra Singh v/s Speaker, Manipur Assembly) is for the Speaker to decide on disqualification petition within three months. To quote, “The Speaker acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period…. a period of three months from the date on which the petition is filed is the outer limit within which the disqualification petition filed before the Speaker must be decided”. This is the fourth month and the office of the Speaker seems unbothered about the directions from the apex court.
Two-thirds game
Probably, another disqualification petition in respect of the eight Congress MLAs who claim a merger to fall in the ambit of the exception to disqualification on ground of defection would be filed before the Speaker. Paragraph 2 of the Tenth Schedule lays down the grounds of defection inviting disqualification. Paragraphs 4 and 5 are the exceptions to this Rule.
The popular view is that a minimum of two-thirds of the members of a legislative party can chalk out a valid merger. Just two-thirds legislators of a party can form a group and walk away as winners! A strict reading of Para 4 (1) tells a different story. This provision in the Tenth Schedule speaks of the merger of the original political party and the member of the House claiming to be the member of such other political party consequent on the merger. The sub-clause (a) of Para 4(1) permits an MLA to be a member of any other political party as a result of the merger of the original political party and is saved from disqualification. The sub-clause (b) to the said paragraph 4 (1) provides the scope to dissent from the decision of the original political party. The member of the legislature belonging to the said party need not accept the merger and opt to function as a separate group.
Clause (2) of Paragraph 4 enunciates that merger of the legislative group would be valid if and only if a minimum of two-thirds members of the legislative party agree to the merger of the original political party. If there is disagreement over the merger of the original political party, they have the option to reject the merger. It means that the immunity from defection for this group is available provided there is a merger of the original political party. The corollary of this is that the two-thirds criteria would come post the merger of the original political party.
In the matter of the infamous merger of eight Congress MLAs elected to the Eighth Goa Legislative Assembly, the only document on which the Speaker has relied upon is the resolution of the eight members of the legislative party. There is no resolution of the original political party to indicate compliance to Paragraph 4(1). Without adherence to the provisions of Para 4(1), just a short-cut to short-circuit the process for merger only to circumvent the penalty of defection may not be tenable. Further, the Indian National Congress – the original political party – has petitioned to the Speaker in July, 2022, seeking disqualification of their two MLAs under paragraph 2(a) of the Tenth Schedule claiming conspiracy to damage the party. These two senior MLAs are part of the group of eight who claim merger into the BJP. The delay of over three months by the Speaker is indiscretion and carelessness in context of the constitutional responsibility of the Chair. Would it be unfair to accuse the Speaker of dereliction of statutory duties?
(The writer is an educationist and political commentator)
