The fast forward politics in Goa since 2017 continues to dominate and make us a laughing stock. The issues like whether a senior alliance partner can gobble up a minor alliance partner are extremely significant at times when alliance politics is here to stay. The other political issue that our state has managed to make mince meat of the anti- defection law pales into insignificance, despite the ‘split’ has been done away with as ruling parties are able to persuade MLAs to quit the opposition ranks to bolster their ranks.
Political issues aside, legal issues that have gone unnoticed in the euphoria of fast forward politics where only cobbling of numbers is seen as smart politics. The question of whether 2/3rd members of legislative party could merge without the original political party merging is what has been missed. Is the speaker entitled to give a declaration of merger? Clause 4 of anti- defection law based upon which, the Goa speaker has approved the merger, nowhere either speaks of recognition being granted to the group or a declaration of merger.
Dealing with split a constitution bench of Supreme court held, “Acceptance of the argument that the legislators are wearing two hats, one a members of original political party and the other as members of the Legislature and it would be sufficient to show that one third of the legislators have formed a separate group to infer a split or to postulate a split in the original party, would militate against the specific terms of Para 3. That paragraph speaks of two requirements, one, a split in the original party and two, a group comprising of one-third of the legislators separating from the Legislature party. By acceding to the two hat theory one of the limbs of Para 3 would be made redundant or otiose. An interpretation of that nature has to be avoided to the extent possible. Such an interpretation is not warranted by the context. It is also not permissible to assume that Parliament has used words that are redundant or meaningless. We, therefore, overrule the plea that a split in the original political party need not separately be established if a split in the Legislature party is shown.” 2007 (4) SCC 270
Same principle shall apply for interpretation of merger. It is clear that only when there is evidence to show that there was a decision to merge the MG party (political party) and as a result of which, the two MLAs are part of the merging group and constituting 2/3rds are entitled to save themselves from disqualification. The two MG party MLAs have made a claim of merger of the MG party but such a claim itself is not enough. It would be necessary to at least prima facie show, by material evidence that there has been a merger of the original party. The acceptance by the speaker without any material that the MG party has merged, is entire unsustainable.
There is another way of looking at it, the two MLAs were set up by the MG party and their leaving the MG party will certainly tarnish the public image of that party and the party is prone to be looked at with suspicious eyes. In fact the two MLAs have made serious allegations that the party was not on a bonafide path. If that be so was the party not entitled to be heard and given reasonable opportunity before the speaker accepted the version of the two MLAs having merged?
The speaker under the anti-defection law is not enjoined to give declaration on mergers but a merger can only be a defence in a disqualification petition. Determination of question of merger cannot be divorced from a petition of disqualification of MLA/s. A constitution bench of the Supreme Court has held ‘that under the scheme of 10th schedule the speaker does not have an independent power to decide that there has been a of merger as contemplated under paragraph 4 and such a decision can be taken only when the question of disqualification rises in a proceeding for disqualification. Based upon this view of the Supreme Court a division bench of the Punjab and Haryana High Court held that the speaker was not entitled to adjudicate upon the merger of 4 MLAs of Haryana Janhit Congress (BL) having merged into Indian National Congress without deciding the disqualification petitions.
But who has time for such niceties in fast forward times.
(This writer is a practicing lawyer)
