The Goa Speaker has done what was expected. Only the naïve expected him to disqualify the ten erstwhile Congress MLAs and two MGP MLAs. The speakers throughout the country have reduced the anti-defection law to a plaything in the hands of the ruling side. When the issue of independence of the speaker was questioned, the Supreme Court depended upon what Nehru, said on the position of the speaker. Nehru had said ‘Speaker becomes the symbol of the nation’s freedom and liberty…. should be occupied always by men of outstanding ability and impartiality”. And as Erskine May said the chief characteristic of the speaker of House of Commons is authority and impartiality. How the Indian speakers have acted since independence was lost sight of. Probably the Supreme Court had India’s first speaker G V Mavlankar in mind!
The anti-defection law was brought to provide stability to governments, to protect the party system and to see that MLAs act as per the mandate of the people. It was a clear attempt to deal with scourge of money and power in government formation. The law was crystal clear. Even the MLAs could not vote as per their conscience. They had no business to claim having voted in the interest of the electorate as the Goa MLAs who shifted to BJP told us that they have shifted to develop their constituencies (development? My foot!). The tragedy is that our speakers have made a comedy of the law. Along with the ruling side, they have wreaked havoc with the multiparty democratic system. The joke is on the Supreme Court which placed on par our speakers with the speakers of the House of Commons.
The issue involving the ten Congress MLAs and two MGP MLAs shifting to BJP in Goa is through exception of ‘merger’ in the anti-defection law. The exception of merger to anti-defection law states “a member of a house shall not be disqualified where his original political party merges with another political party and he claims that he and other members of his original political party (2/3rd members) have become members of that other party. Basically the political party merges with another political party and two thirds of the members of the legislative wing accept that merger. A merger can take place between two ‘original political parties’. The case before the Goa speaker is that Congress party and the MGP have merged with the BJP. Is there any evidence of such merger or only the 2/3 of the total MLAs have so claimed.
The question of whether the ‘legislative wing of a party’ is ‘the political party ‘or the party that sets up the candidate is the political party is the issue for determination. The other question is: Can the legislative wing of a national party merge the ‘original political party at the state level?’ In fact MGP continues to be a functional party and of course Congress is the principal opposition party in the country.
Not only in Goa, all over the country the speakers have acted as agents of the ruling party. The Vice President of India accepted merger of Telugu Desam having merged with BJP when four out of five Rajya Sabha MPs joined the BJP. In Rajasthan Congress is beneficiary of six BSP MLAs merging BSP into the Congress. In Telangana both Telugu Desam Party and Congress merged into TRS. The speakers of Rajasthan and Telangana have accepted the mergers
As I look at it, the issue stands resolved by the Punjab & Haryana High Court in Jagjit Singh Vs Haryana and by the Supreme Court in Rajendra Singh Rana Vs. swami in 2007. In Jagjit Singh, the P&H High Court held… In case the member is put up by a national party, it is a split in that party which is relevant and not a split in that party at the state level. The Supreme Court in 2007 in a BSP case rejected the interpretation that legislators were wearing two hats as members of ‘legislative party’ and members of ‘original political party’ and all that had to be shown was one third members of legislative wing for split. The court wanted material in support of split in the original political party (the same argument is made before the Goa Speaker). But the two judgments are in the matter of ‘split’ which exception is now done away with. That interpretation on ‘split’ must apply to ‘merger’ also. Though the same principle should apply, till the Supreme Court says that in the matter of ‘merger’, the speakers are bound to act, the way they have acted, knowing that by the time the highest court says the last word, the governments whom they support continues to remain in power.
The problem with the law is there is no mandate upon the speaker to decide within a time frame. The ruling side has always exploited that lacunae and the Courts are slow in intervening. Why should such a matter take years to decide? And why should the Supreme Court take almost twenty months to direct the speaker to decide within a time frame? In 2007, the tardy manner of Allahabad High Court in a matter constitutional propriety came for serious criticism by the apex court. The highest court was then conscious of the criticism in the functioning of the institution. That alacrity is no longer available at the highest court.
The decision of the Goa speaker will have to be challenged before the High Court or the Supreme Court so that the last word on merger is said. The issue is actually pending before the highest court. It is extremely unfortunate that in a largest democracy, people’s mandates are stolen as those elected have only contempt for people and their electoral choices.
