AERIAL VIEW
Girish Chodankar’s filing petition indicates that Congress isn’t serious about the issue. Of Course, disqualification petitions are not something new for Chodankar.
After fighting for two and half years of fighting the case before the Speaker of Goa Legislative Assembly and, subsequently, in the High Court of Bombay at Goa, Girish Chodankar had to face defeat in the disqualification case against 10 Congress MLAs, who deserted the party in 2019.
Pronouncing the judgement then, the court said, “We conclude that the Petitioners have not been able to make out a case for interference in the impugned Orders passed by the Speaker, and we hold that the Disqualification Petitions filed by the Petitioners were correctly dismissed by the Speaker”.
SURAJ NANDREKAR
Editor, Goemkarponn
Almost two months after the eight Congress MLAs joined the BJP, two petitions of disqualification have been filed before the Speaker of the Goa Legislative Assembly.
While one petition has been filed by former president of GPCC Girish Chodankar, another has been filed by one, Dominic Noronha. One wonders why Congress has officially not filed any so far, even as they have a lawyer of the calibre of Adv Carlos Alvares Fereira? One wonders what is holding them back/ Or are they waiting for some muhurat?
Girish Chodankar’s filing petition indicates that Congress isn’t serious about the issue. Of Course, disqualification petitions are not something new for Chodankar.
After fighting for two and half years of fighting the case before the Speaker of Goa Legislative Assembly and, subsequently, in the High Court of Bombay at Goa, Girish Chodankar had to face defeat in the disqualification case against 10 Congress MLAs, who deserted the party in 2019.
Pronouncing the judgement then, the court said, “We conclude that the Petitioners have not been able to make out a case for interference in the impugned Orders passed by the Speaker, and we hold that the Disqualification Petitions filed by the Petitioners were correctly dismissed by the Speaker”.
The court also said that Speaker in the present case was justified in holding that MLAs did not attract disqualification under the Tenth Schedule as the deeming fiction under subparagraph (2) of paragraph 4 of the said Schedule operated in their favour.
Loopholes in the law…
While Chodankar seems to be fighting a lone battle without much support from the party, his petitions fate would be no different than in the past.
The eight MLAs – Michael Lobo as LoP then conducted a meeting of CLP, which was attended by Digambar Kamat, Alexio Sequeira, Delilah Lobo, Sankalp Amonkar, Kedar Naik, Rajesh Faldesai and Rudolf Fernandes, and passed a resolution to merge the party into BJP.
Subsequently, the Speaker also passed an order saying the merger was as per law.
So, what outcome the present petitions would bring is anybody’s guess.
However, it is not the Speaker or HC or SC but the law itself to be blamed for the current situation. There are too many loopholes kept for politicians to get away from disqualification.
What is the Merger as per
Para 4 of Tenth Schedule?
It may be noted that Para 3 of the Tenth Schedule was omitted by the Constitutional (Ninety-first Amendment) Act 2003. However, the Supreme Court in Jagjit Singh V State of Haryana (2006) 11 SCC 1, while dealing with a case of split as per para 3 of the Tenth Schedule, held that prima facie proof of split is necessary to be produced before the Speaker to satisfy him that such a split has taken place that for the purpose of the split, it cannot be held that it is the State Legislature party in which split is to be seen and in case a Member is put by a National Political Party, it is split in that party which is a relevant consideration and not a split of the political party at the State level.
Also, the Constitution Bench of the Supreme Court in Rajendra Singh Rana v Swami Prasad Maurya and Others (2007) 4 SCC 270 also, while dealing with a case of a split, held that those who have left the party will have to show prima facie by relevant material that there has been a split in the original party and split in the original political party has to be separately established if a split in legislature party is shown.
Though Jagjit Singh and Rajendra Rana were cases of split as per Para 3 of Tenth Schedule, which was omitted by Constitutional (Ninety-first Amendment) Act 2003, and there is no pronouncement of the Supreme Court with regard to para 4 of the Tenth Schedule, which deals with merger and merger shall be deemed to have taken place if and only if, not less than two-thirds of the members of the Legislature party concerned have agreed to such a merger.
But the same analogy needs to be accepted for Para 4 of the Tenth Schedule for the purpose of merger also as held in Jagjit Singh and Rajendra Rana i.e. the purpose of merger also if the members claiming merger had been set up by a National party then, in that case, it has been shown that merger has taken place at National level and just two-third members of the legislature party have agreed to such merger should not be sufficient so that the constitutional mandate is not defeated.