PANAJI: Nearly 10 days after the tiniest state went to polls, the Bombay high court on Thursday dismissed a plea seeking disqualification of 12 MLAs—10 from Congress and two from MGP—who had joined BJP and said it was a merger of two-thirds of the MLAs of the political parties and not defection.
The division bench comprising justices Manish Pitale and RN Laddha said the speaker was justified in holding that the 12 MLAs didn’t attract disqualification under the Tenth Schedule, as disqualification on ground of defection will not apply in case of a merger where not less than two thirds of the members of the legislature party agreed to such merger.
Ten Congress MLAs out of 15 and two of the three MGP MLAs had joined BJP in 2019. Assembly speaker Rajesh Patenkar had dismissed the disqualification pleas filed against the MLAs by Congress and MGP.
Congress state president Girish Chodankar had challenged the speaker’s verdict on the grounds that it failed to take documentary evidence while deciding the disqualification petition.
Congress argued that the speaker’s decision not to disqualify Its 10 legislators frustrates the whole objective of introducing the Tenth Schedule of the Constitution to address the “evil of defects”.
The court said that the object of introduction of the Tenth Schedule to the Constitution is not only to prevent unprincipled defects, but to lay down the minimum standards of political and constitutional morality in the backdrop of merger of political parties. It said the schedule also lays down conditions in which a member would either attract disqualification under paragraph 2 or such member would stand protected from disqualification under paragraph 4.
“Parliament in its wisdom has included sub-paragraph (2) of paragraph 4 of the said schedule, which cannot be held to be militating against the object of introduction of the Tenth Schedule and it cannot be said that the same would encourage defects,” the bench said.
The court said the schedule speaks of a deemed merger of the original political party to which an elected member of the House belongs, if and only if, not less than two-thirds members of the legislature party agree to such merger.
“In the present case, as per sub-paragraph (2) of paragraph4 of the said schedule, the deeming fiction comes into operation the moment not less than two-thirds members of the legislature party agree for merger and the moment such deeming fiction operates , the court has to proceed on the basis that in fact there has been a merger of the original political party, as a result of which, the real consequences must inevitably follow,” the court said.
Congress also alleged bias and malice by the speaker in deciding the matter. “The speaker deliberately delayed the proceedings pending before him since August 2019 and finally passed the order in the matter, after an inordinate delay of 20 months of filing of the disqualification petition, that too only after the Supreme Court intervened by passing orders,” the petition said.
The high court stated that no case was made out by the petitioners for interference in judicial review of the orders passed and concluded that none of the jurisdictional errors could be demonstrated by the petitioners.
The 10 Congress MLAs who switched over to BJP were Chandrakant Kavalekar, Isidore Fernandes, Nilkanth Halarnkar, Jennifer Monserrate, Antonio Fernandes, Francisco Silveira, Wilfred D’Sa, Clafasio Dias, Filipe Rodrigues and Atanasio Monserrate, while the two MGP MLAs who switched over to BJP were Manohar Ajgaonkar and Deepak Pauskar.
The division bench comprising justices Manish Pitale and RN Laddha said the speaker was justified in holding that the 12 MLAs didn’t attract disqualification under the Tenth Schedule, as disqualification on ground of defection will not apply in case of a merger where not less than two thirds of the members of the legislature party agreed to such merger.
Ten Congress MLAs out of 15 and two of the three MGP MLAs had joined BJP in 2019. Assembly speaker Rajesh Patenkar had dismissed the disqualification pleas filed against the MLAs by Congress and MGP.
Congress state president Girish Chodankar had challenged the speaker’s verdict on the grounds that it failed to take documentary evidence while deciding the disqualification petition.
Congress argued that the speaker’s decision not to disqualify Its 10 legislators frustrates the whole objective of introducing the Tenth Schedule of the Constitution to address the “evil of defects”.
The court said that the object of introduction of the Tenth Schedule to the Constitution is not only to prevent unprincipled defects, but to lay down the minimum standards of political and constitutional morality in the backdrop of merger of political parties. It said the schedule also lays down conditions in which a member would either attract disqualification under paragraph 2 or such member would stand protected from disqualification under paragraph 4.
“Parliament in its wisdom has included sub-paragraph (2) of paragraph 4 of the said schedule, which cannot be held to be militating against the object of introduction of the Tenth Schedule and it cannot be said that the same would encourage defects,” the bench said.
The court said the schedule speaks of a deemed merger of the original political party to which an elected member of the House belongs, if and only if, not less than two-thirds members of the legislature party agree to such merger.
“In the present case, as per sub-paragraph (2) of paragraph4 of the said schedule, the deeming fiction comes into operation the moment not less than two-thirds members of the legislature party agree for merger and the moment such deeming fiction operates , the court has to proceed on the basis that in fact there has been a merger of the original political party, as a result of which, the real consequences must inevitably follow,” the court said.
Congress also alleged bias and malice by the speaker in deciding the matter. “The speaker deliberately delayed the proceedings pending before him since August 2019 and finally passed the order in the matter, after an inordinate delay of 20 months of filing of the disqualification petition, that too only after the Supreme Court intervened by passing orders,” the petition said.
The high court stated that no case was made out by the petitioners for interference in judicial review of the orders passed and concluded that none of the jurisdictional errors could be demonstrated by the petitioners.
The 10 Congress MLAs who switched over to BJP were Chandrakant Kavalekar, Isidore Fernandes, Nilkanth Halarnkar, Jennifer Monserrate, Antonio Fernandes, Francisco Silveira, Wilfred D’Sa, Clafasio Dias, Filipe Rodrigues and Atanasio Monserrate, while the two MGP MLAs who switched over to BJP were Manohar Ajgaonkar and Deepak Pauskar.
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