Can NCP merge?

By Cleofato A Coutinho
05 January 2011 14:29 IST

The tiny State of Goa has always been a laboratory for the Anti Defection Law. Goa’s contribution to the development of anti defection law is tremendous. A number of cases were carried to the Bombay High Court and the Supreme Court. Various issues pertaining to defections, role of speaker and procedure to be adopted have been settled on issues raised in Goa.

A strange political situation is again developing in Goa. The Nationalist Congress Party (NCP), an alliance partner of the UPA government at the centre and the Congress-led alliance here in Goa, has demanded that their two ministers Jose Philip D’souza and Nilkanth Halarnkar be removed from the state cabinet and replaced by another MLA Mickky Pacheco.

The Congress Chief Minister, based upon his party dictates, has not accepted the request of its alliance partner and that is leading to a head on confrontation. Though inclusion and exclusion of a minister is always Chief Minister’s prerogative, in the new coalition dharma, the prerogative has shifted to the respective parties.

The NCP has replaced the leader of its legislature party and its whip in the state legislature. It is widely reported that the NCP duo in the state cabinet were negotiating their joining the Congress Party in the immediate future, leading to the liquidation of the NCP. The NCP acted with alacrity in the matter.

The Nationalist Congress party, with three members in the legislature, is facing a strange situation with two of its members not accepting the party line to quit the state cabinet. The party is now forced to depend upon a single member as against two members.

What would happen in case of possible confrontation between the two members constituting a 2/3rd majority in the legislature party as against the single MLA? What would be the possible outcome if the chief minister insists on refusing to accept the dictates of the Nationalist Congress Party to induct Mickky Pacheco?

The replacement of the legislature party chief and the whip in the state legislature by the NCP is seen as a prelude to the withdrawal of NCP support to the government. There can be no doubt that it is the NCP that shall decide whether its MLAs sit on the government side or the opposition side. The members of the NCP in the legislature  shall be bound by the decision of the NCP. Having accepted the party ticket to contest the elections, the NCP members shall have to abide by the decision of the party.  The Bombay High Court holds “to vote against the party is disloyalty, to join with others in voting for other side smacks of conspiracy”.

In case the NCP decides not to press the issue of dropping of the two ministers and inducting of the third member, the matter would rest at that. However, in case the NCP presses its demand and the chief minister refuses, it could lead to a confrontation leading to withdrawal of support.  In case such a decision to withdraw support to the government is taken and the two ministers refuse to abide by the party line or vote against the government despite the party demand, it would tantamount to rebelling against the party. It would thus incur disqualification of the membership under the Anti Defection Law. In such case, the speaker shall have to decide on any disqualification petition that may come up before him. 

Another situation that can possibly emerge is the stand by the two MLAs of merging the NCP with the Congress Party in terms of clause 4 of the 10th schedule (anti defection law). Clause 4 of the 10th schedule speaks of a member not being disqualified when his original political party merges with another political party for which purpose two thirds of the members of the legislature party ought to agree to such a merger. In this case, the two NCP ministers constitute two thirds of the legislature party.

Whether a Nationalist Congress Party (NCP) could be merged by two MLAs in the state when there is no merger at the national level and at other levels is the question that is raised.

A similar situation arose in Goa itself in the year 1998 when a group led by Dr. Wilfred de Souza met at his residence and resolved to split from the Indian National Congress to form the Goa Rajiv Congress under his leadership, reducing the Pratapsingh Rane government to a minority.

The major argument raised on behalf of  Pratapsingh Rane (now the Speaker) before the Hon’ble High Court of Bombay in writ petition 317/1998 was that a split as recognized under the anti defection law is a split in the political party. The argument was that the members splitting ought to constitute a group representing a faction which has arisen as a result of a split in the original political party.

A contention was also taken up before the Hon’ble High Court that “a national political party has a vertical hierarchy, commencing from the lowest constituted level within the organization, right up to the highest policy making body”. … And if some members of the legislature party break away, it would not be split without a split at various levels in the political hierarchy. The contention raised was that crossing of floor, which owes their genesis to a split in the political party, is legitimized and not when the split is in the legislature party only.

The Hon’ble High court clearly rejected such a contention. It stated: “it is not at all necessary that it should be a vertical split at all levels or rungs of the political party. It is not for the Speaker to find out that extent or percentage of the split in the political party. However, when it comes to the legislature party, the group claim representing the faction has to be not less than one third of the members of the legislature party”.

The above interpretation of the Bombay High Court was on the question of a split. The concept of split has now been done away with. However, the concept of merger has been retained. The Supreme Court in 2006 (Jagjit Singh V/s State of Haryana) held “…it cannot be held that for the purposes of the split, it is the legislature party in which the split is to be seen…”. The court was clear that the split of the legislature party must form a group to make the split in the political party effective. The words used to define split in the then clause 3 of the 10th schedule are similar to the definition of merger.   From that it is almost clear that a stand of merger by the Goa NCP Legislature may not stand the scrutiny of law. In case such a stand of merger is taken by the two members of the NCP, the matter may have to decided by the speaker in case a petition is brought before him. However, whatever view the speaker takes in the matter in case such a issue comes up, it would be subject to the judicial review.

Disqualification is never automatic but requires an adjudication by the speaker. That places the speaker in a pivotal position.

The fate of the two members shall be in the hands of the speaker before the matter is taken up before the High Court or the Supreme Court as the case may be.  With time running out for the house, the speaker’s decision may be extremely crucial.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Previous Comments

India is a over legislated country- with too many legislations- many with loop holes! The poor implementation is another sad reality!

The attraction for the chair is so strong- it can find ways and means to thwart any legislation meant for those who believe in honesty and probity in public life!

In Goa there are many legislations which need urgent attention from the Law Commission as they are instrumental in causing harassment to common man and create huge scope for corruption! Like the land mutation! It is a common m knowledge that every now and then some or other Talathi is caught red handed while receiving bribe in the mutation cases!

When you buy a small piece of land by a valid sale deed-the plot should have been transferred in the name of the purchaser with a proper partition/survey number!

But instead of this the intermediate step of mutation is not at all desirable as this causes only misery to the both the parties- the original owner of the property and the new owner who bought a small piece of the big property! This is because the name of the purchaser of the small piece gets entered in the survey number as c0-owner after mutation and both owner and the co-owner-need NOC for doing any development/ cutting trees etc.

Most of the procedures are left at the stage of mutation and very few go for partition.The logic demands that the mutation should have been an intermediate stage and the process completed with partition and separate survey number to the purchased plot!

The land acquired by Konkan Railways for the BG line almost more than 20 years back has been left after mutation and no partition has been done for last two decades! Is this not the result of a bad legislation? Does such situation not lead to unnecessary harassment to common man?

The Law Commission would do well to review all such bad legislations giving scope for more corruption and cause miseries to common man!

- vishwas prabhudesai, loliem | 06 th January 2011 16:38

 

The Speaker's decision may not come before the next elections, if disqualification petition is filed.

- Ludovico, Old-Goa | 06 th January 2011 12:49

 

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