Court observations…
- “We conclude that the Petitioners have not been able to make out a case for interference in the impugned Orders passed by the Respondent no.1-Speaker
- Upon the merger of the original political party of the elected member with another political party, the elected member will not face disqualification in either contingency i.e. whether he chooses to go with the merger or disagrees with the same.
- The contention raised on behalf of the Respondents pertaining to the concept of substantive proximate becomes relevant.
- It becomes clear that the Petitioners are not justified in contending that subparagraphs (1) and (2) of paragraph 4 of the said Schedule are interlinked, interdependent and the necessity of not less than two-thirds members of the legislature party agreeing to the merger is an additional condition for the merger of the original political party under subparagraph (1) of paragraph”
Goemkarponn desk
PANAJI: The High Court of Bombay at Goa on Thursday dismissed the disqualification petition filed by Congress and MGP against 12 MLAs.
The two seperate petitions were filed by GPCC president Girish Chodankar and MGP MLA Sudin Dhavalikar against 12 MLAs – Jennifer Monseratte, Atanasio Monseratte, Babu Kavlekar, Filipe Neri Rodrigues, Clafasio Dias, Tony Rodrigues, Isidore Fernandes, Francis Silveira, Wilfred D’Sa, Nilkanth Halarnkar, and MGP’s Babu Azgaonkar & Deepak Pauskar.
Passing the Judgement today, Justice R. N. LADDHA and Justice J. MANISH PITALE said, after hearing the case, concluded that
the Writ Petitions stand dismissed, with no order as to costs. Pending applications, if any, also stand disposed of.
“We conclude that the Petitioners have not been able to make out a case for interference in the impugned Orders passed by the Respondent no.1-Speaker and we hold that the Disqualification Petitions filed by the Petitioners were correctly dismissed by the Respondent no.1- Speaker,” the Bench said.
The Court said that impugned Orders passed by the Respondent no.1-Speaker, rejecting the Disqualification Petitions cannot be said to be militating against the object of introduction of the Tenth Schedule to the Constitution on the touchstone of political and Constitutional morality, in view of the specific observations regarding wisdom of the Legislature/Parliament made in the aforesaid Judgment of the Supreme Court in the case of Kihoto Hollohan vs. Zachillhu (supra).
In its observations, the Court said that the perusal of the provisions shows that Legislature Party and original political party are two distinct entities recognized in the Tenth Schedule itself.
“A Member of a House would invite disqualification under paragraph 2 of the said Schedule if the contingencies contemplated therein occur, but such member would be protected from disqualification if paragraph 4 of the said Schedule comes into operation,” it said
Also, it says, explanation (a) to paragraph 2(1) of the said Schedule states explicitly that an elected Member of a House shall be deemed to belong to the political party which sets him up as a candidate for election.
“Therefore, when a candidate contests election on the ticket of a political party and gets elected as a Member of a House, under the aforesaid explanation, he is deemed to be belonging to that political party. 39. Under paragraph 4 of the said Schedule, an exception to disqualification under paragraph 2 is carved out in the context of the merger of the original political party to which an elected member is deemed to belong. Sub-paragraph (1) of paragraph 4 of the said Schedule starts with the words “A member of a House shall not be disqualified under subparagraph (1) of paragraph 2″. These opening words are of immense significance because they point towards the exception to paragraph 2(1) of the said Schedule being carved out to protect a member of a House from disqualification,” it said
Court says that Schedule provides that when the original political party of a member of a House, meaning thereby that the political party that had set him up as a candidate for the election merges with another political party, such a member is not disqualified under subparagraph (1) of paragraph (2) of the said Schedule if he becomes a member of such other political party or of a new political party formed by such merger or having not accepted the merger, he opts to function along with the other like minded members as a separate group.
It is further laid down in the said provision that after such merger, such an elected member would be deemed to be belonging to the political party into which his original political party has merged or the new political party that may be formed by such merger.
“If the elected member disagrees with the merger and sits separately either himself or with other like-minded members who have chosen to disagree with the merger, the separate group so formed shall be deemed to be the political party of such member/members,” it says.
In simple words, the Court says, upon the merger of the original political party of the elected member with another political party, the elected member will not face disqualification in either contingency i.e. whether he chooses to go with the merger or disagrees with the same.
But, the said 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 of members of the legislature party agree to such merger.
“It is crucial that subparagraph (2) of paragraph 4 specifically refers to “legislature party” and that this expression is not contained in subparagraph (1) of paragraph 4 of the said Schedule. The said contingency pertains to the merger of the original political party with another political party. Such merger pertains to the factual merger of such political party, which is an event necessarily outside the House,” the Court says.
“It is clear from the said wordings that the deeming fiction comes into operation on the stringent condition that not less than two-thirds members of the legislature party agree to such merger. This clearly indicates that subparagraph (2) of paragraph 4 of the said Schedule operates in a field distinct and independent of subparagraph (1) of paragraph 4. This distinct and independent field contemplates a situation where there is no merger of the original political party and yet, it has to be deemed that such merger has taken place, if and only if, not less than two-thirds of the members of the legislature party agree to such a merger. Once the said condition is satisfied, the deeming fiction operates under subparagraph (2) of paragraph 4 of the said Schedule for the purpose of subparagraph (1) thereof, which is protecting the member of a House from disqualification under subparagraph (1) of paragraph 2,” it says
Court observed that it is correct that once the deeming fiction comes into operation, even when there is, in fact, no merger of the original political party, we have to proceed on the basis that such merger has taken place by operation of the deeming fiction, so long as not less than two-thirds members of the legislature party agree to such a merger.
“In this context, the contention raised on behalf of the Respondents pertaining to the concept of substantive proximate becomes relevant. Applying the said concept to subparagraph (2) of paragraph 4 of the said Schedule, the words “have agreed to such merger” are substantively proximate to the words “deemed to have taken place”, indicating that such merger of the political party refers to deemed merger in subparagraph (2) of paragraph 4 and not merger of the original political party as specified and contemplated under subparagraph (1) of paragraph 4 of the said Schedule,” it said.
HC also said that “it becomes clear that the Petitioners are not justified in contending that subparagraphs (1) and (2) of paragraph 4 of the said Schedule are interlinked, interdependent and the necessity of not less than two-thirds members of the legislature party agreeing to the merger is an additional condition for the merger of the original political party under subparagraph (1) of paragraph”
As noted above, the court said subparagraph (1) of paragraph 4 addresses the fallout of the merger of a political party on members of the House, whether they agree or disagree with the same.
“The same is clearly disjunctive from the specific situation of deemed merger contemplated under subparagraph (2) of paragraph 4. Moreover, under subparagraph (2) of paragraph 4 of the said Schedule, the Speaker can decide only about the legislature party and whether two-thirds of members of the legislature party have agreed to a merger,” it said.
Court further said that it is correctly pointed out that merger of an original political party, which is a National Party with another political party which is also a National Party, would not take place, even if factually both political parties have agreed for a merger, only because not less than two-thirds members of legislature party of such political parties in even one legislature in the entire Country have not agreed for such merger.
“The contention raised on behalf of the Petitioners that this does not indicate unworkable nature of paragraph 4, by stating that such members of the legislature party would sit as a separate group, cannot be accepted because it would render subparagraph (2) of paragraph 4 completely otiose,” court said
In fact, HC added that if such an interpretation is accepted, there would have been no need for the Parliament to incorporate subparagraph (2) in paragraph 4 of the Tenth Schedule to the Constitution.
Brief history…
- These two Writ Petitions by Congress and the MGP challenged orders passed by the Speaker of the Goa Legislative Assembly dismissing petitions filed for disqualification of respondent Members of the Legislative Assembly.
- The Speaker of Goa Legislative Assembly has held that the said respondents did not invite disqualification, as the deeming fiction under paragraph 4(2) of the Tenth Schedule to the Constitution operated in their favour.
- The Petitioners have, inter alia, raised the question of political morality and as to whether the orders passed by the Speaker are in furtherance of the object with which the Tenth Schedule was introduced in the Constitution.
- The elected members of the BJP, along with MGP, the GFP and the independents, formed the Government in the State of Goa. Later, one of the Members of the Legislative Assembly (MLA), representing the INC from the Valpoi Constituency, resigned from membership of the INC and gave up membership of the Legislative Assembly also.
- Thereafter, in October 2018, two members of the Legislative Assembly belonging to the INC, resigned from the assembly and joined BJP. In this process, the MLAs belonging to the INC, were reduced to 14.
- Thereafter, on 17.03.2019, the then Chief Minister of Goa passed away and an MLA of the BJP was appointed as the Chief Minister along with two Deputy Chief Ministers belonging to the MGP and GFP. In the election conducted for the seat that fell vacant due to demise of the then Chief Minister, Respondent no.11 contested and won as an INC candidate.
- Thus, tally of INC rose to 15. 4. On 10.07.2019, Respondent nos. 2 to 11, claiming to be two-thirds of the legislative party of the INC in the assembly, decided to join the BJP and informed the Respondent no.1-Speaker.
- The office of the Goa Legislative Assembly issued bulletin dated 10.07.2019, recording that INC Legislature Party in the Goa Assembly decided to merge with the BJP and that, accordingly, the ten members i.e.
- Respondent nos. 2 to 11 herein, were allotted seats along with the members of the BJP in the House.
- On 08.08.2019, the Petitioner instituted Disqualification Petition no. 3 of 2019, against Respondent nos. 2 to 11 before the Respondent no.1 on the basis of a Resolution dated 24.07.2019, passed by the Goa Pradesh Congress Committee authorizing the Petitioner to file such a Petition.
- According to the Petitioner, the Respondent nos. 2 to 11 deserved to be declared as disqualified from holding membership of the House, as they had voluntarily given up membership of their original party i.e. INC, thereby attracting disqualification under the Tenth Schedule to the Constitution.
- The Respondent no.1 informed the parties that judgment in the matter would be pronounced on 29.04.2021. At this stage, on 06.04.2021, when the aforesaid Writ Petition was listed before the Supreme Court, a statement was made on behalf of Respondent no.1 that final order in the matter would be passed on 20.04.2021.
- Accordingly, on 20.04.2021, the Respondent no.1 passed the impugned order, dismissing the Disqualification Petition filed by the Petitioner, holding that paragraph 4(2) of the Tenth Schedule to the Constitution applied to the facts of the present case and since two-thirds members of the legislature party of INC had decided to merge with the BJP, the deeming fiction operated, thereby saving Respondent nos. 2 to 11 from disqualification.
- Upon receiving a certified copy of the impugned Order, on 01.06.2021, the Petitioner filed the present Writ Petition.
- On 07.06.2021, the Presiding Judge of the Division Bench of the High Court of Bombay at Goa, recused in the matter. Accordingly, since an alternative Division Bench was not available at Goa, the Petition was transferred to the Principal Seat at Bombay.
- After being adjourned on a few occasions, on the availability of the alternative bench at Goa, in October 2021, the Petition was re-transferred to the High Court of Bombay at Goa.
- It is in this manner that the said Petition came up for hearing and final disposal along with the companion Writ Petition.