PANJIM: The High Court of Bombay at Goa on Thursday dismissed the appeals filed by the Congress and the Maharashtrawadi Gomantak Party (MGP) against the 12 rebel MLAs.
Both, the Goa Pradesh Congress Committee (GPCC) president Girish Chodankar and MGP MLA Ramkrishna (Sudin) Dhavalikar had challenged the Goa Assembly Speaker Rajesh Patnekar’s verdict dated April 20, 2021, dismissing their disqualification petitions against the rebel MLAs.
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Chodankar had challenged the Speaker’s order holding the merger of 10 rebel MLAs as valid. The 10 MLAs – Chandrakant (Babu) Kavalekar, Isidore Fernandes, Nilkanth Halarnkar, Jennifer Monserrate, Antonio (Tony) Fernandes, Francis Silveira, Wilfred (Babashan) D’Sa, Clafasio Dias, Filipe Nery Rodrigues and Antanasio (Babush) Monserrate – had joined the Bharatiya Janata Party (BJP) in July 2019.
Similarly, Dhavalikar had filed an appeal against the Speaker’s order against two party MLAs Babu Ajgaonkar and Deepak Pauskar, who had joined the BJP in March 2019.
The Speaker in his order had held that the 12 respondents do not attract disqualification as the deeming fiction under paragraph 4(2) of the Tenth Schedule to the Constitution operated in their favour.
Arguing on behalf of the petitioners, senior counsel Vivek Tankha submitted that the Speaker had erred in interpreting paragraph 4 of the Tenth Schedule to the Constitution by treating sub-paragraph (1) in a disjunctive manner from sub-paragraph (2) thereof. He emphasised that paragraph 4 of the Schedule contemplates ‘twin test’ for arriving at a conclusion regarding merger of the original political party. Such merger would be complete and protect a member of a House from being disqualified when there was merger of the original political party and two-thirds members of the legislature party agreed with such merger.
Tankha further said that the entire purpose of introducing the Tenth Schedule to the Constitution was to address the mischief of defection and it would stand frustrated if the order passed by the Speaker was upheld. He prayed that all 10 rebel MLAs had attracted disqualification as they had voluntarily left their original political party and there was no merger of the original political party with the other political party.
Advocate General Devidas Pangam, representing the Speaker submitted that the ‘twin test’ being read in paragraph 4 of the Tenth Schedule of Constitution was wholly misplaced and that the Speaker was justified in dismissing the disqualification petitions. He said that there was clear difference between the erstwhile paragraph 3 of the Tenth Schedule to the Constitution pertaining to split of political party and paragraph 4 pertains to merger of political parties. Thus what applied to a split of a political party does not apply to merger under paragraph 4 of the Schedule, because the words of the two paragraphs are distinct. He brought to the notice of the court that under sub paragraph (2) to paragraph 4 of the Schedule, there is a clear deeming fiction regarding merger of political parties and consequent protection of the members of the House from disqualification.
The Division Bench comprising Justice Manish Pitale and Justice R N Laddha in the order on Thursday stated that the Speaker was justified in holding that the respondents did not attract disqualification under the Tenth Schedule and that the petitioners were unable to make a case for interference or review of the impugned order.
