The Supreme Court on Thursday adjourned the hearing of Goa Congress chief Girish Chodankar’s plea against the Bombay High Court verdict upholding the state assembly speaker’s order dismissing his petition seeking disqualification of 10 party MLAs who had switched over to the BJP in 2019.
The Goa bench of the Bombay High Court had on February 24, 2022 dismissed two petitions filed by Congress leader Chodankar and a Maharashtrawadi Gomantak Party (MGP) lawmaker challenging the speaker’s order. While 10 MLAs of the Congress had joined the BJP, two of the MGP had shifted allegiance to the saffron party.
A bench of Justices Surya Kant and K V Vishwanathan deferred the matter, saying it needs to be heard on a non-miscellaneous day (Tuesdays, Wednesdays and Thursdays).
Only fresh petitions are taken up on miscellaneous days for admission hearing. All working days in the first week after the Supreme Court reopens following vacation and a week before it closes for one are miscellaneous days.
Senior advocate P Chidambaram, appearing on behalf of Chodankar, said the question before the court for consideration is whether members of a legislature party can merge with another party without any evidence that the political party has split.
Additional Solicitor General K M Nataraj, who represented the speaker, said the issue has now been reduced to mere academic discussion as the MLAs whose disqualification was sought had been elected in 2017. The last assembly election was held in Goa in 2022.
“This is a wholly academic exercise,” Nataraj said.
In his plea filed in the apex court, Chodankar has said the high court committed a grave error in upholding Speaker Rajesh Patankar’s order on the mistaken premise that since the 10 MLAs constituted two-thirds of the legislature party, and had decided to merge with another party, they would enjoy the protection granted under Para 4 of the Tenth Schedule.
Para 4 of the Tenth Schedule deals with disqualification on ground of defection but it does not apply in case of merger.
“The impugned judgement effectively holds that 2/3rd of the legislature party members by themselves can initiate and conclude valid merger of a political party under Para 4 of the Schedule X (Tenth) without any reference/role attributable to the original political party in the entire process,” it said.
The plea claimed the high court judgement completely ignores the basic precondition for a valid merger in terms of Para 4 of the Tenth Schedule which are required to be cumulatively complied with.
“The first condition is that there must be a merger of the original political party with another political party and the second condition is that subsequent to the decision of such merger of the original political party, 2/3rd members of the legislature party should agree with and adopt such merger,” Chodankar said in his petition.
The petition says the high court judgement erroneously concluded there was a merger of the original political party when only two-thirds of the legislators had joined the BJP. This, he contended, completely disrobed the original party of any role with respect to its merger.
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It is also apposite to consider the ramifications of the application of the erroneous interpretation to Para 4(2) as given by the high court in the impugned judgement, that is, if Para 4(2) is completely distinct from Para 4(1), then every legislature party which is able to muster 2/3rd of its members can merge with any other party it may see fit, for extraneous reasons that are antithetical to the intent and purpose of Schedule X (Tenth), the petition said.
The Goa assembly speaker had on April 20, 2021 dismissed the disqualification petitions filed by Chodankar and an MGP MLA.
The high court had said the order passed by the speaker rejecting the disqualification petitions “cannot be said to be militating against the object of introduction of the Tenth Schedule of the Constitution on the touchstone of political and constitutional morality”.
In the 2017 polls to the 40-member Goa Assembly, the Congress had emerged as the single largest party winning 17 seats. However, the BJP, which bagged 13 seats, quickly forged an alliance with some regional outfits and independents to form the government.
