Will disqualification petition in SC affect BJP; benefit Congress? (By Sandesh Prabhudesai)

SANDESH PRABHUDESAI, PANAJI | 17 June 2020 21:59 IST

Will the Supreme Court admitting disqualification petition against 10 MLAs, who quit the Congress and joined the BJP, have any impact on the existing all-powerful BJP government of Goa? And will these MLAs, including three ministers, lose their status?

Will the Supreme Court admitting disqualification petition against 10 MLAs, who quit the Congress and joined the BJP, have any impact on the existing all-powerful BJP government of Goa? And will these MLAs, including three ministers, lose their status?

Four weeks from now, it will have to be seen what replies Goa Speaker Rajesh Patnekar and 10 MLAs file in response to the notices issued by the apex court.

However, is it too late to file the petition when the Congress MLAs had split on 27th March last year and the BJP government is going strong also due to limping opposition?

The BJP government today is 28-member strong in the 40-member Assembly, along with one independent MLA.  

Dr Pramod Sawant’s 12-member cabinet includes only 5 ‘original’ BJP members.  The rest are 2 who split from the MGP – Deputy CM Babu Azgaonkar and Dipak Pauskar and 4 who quit the Congress – Deputy CM Babu Kavalekar (former opposition leader), Vishwajit Rane, Philip Neri Rodrigues and Jennifer Monserratte, besides ‘independent’  Govind Gaude.

The opposition, on the other hand, is only 12.

It includes 5 left in the Congress; those who were dropped from BJP-led government:  3 of Goa Forward Party, only 1 left in the MGP and independent MLA Rohan Khaunte as well as vacillating characters like lone NCP MLA Churchill Alemao and independent MLA Prasad Gaonkar.

IS IT TOO LATE?

The question arises in such a situation: Is it a worthwhile exercise to rush to the Supreme Court with a disqualification petition?

And isn’t it too late?

“Certainly we are not late. In fact our main contention is the illegal delay. The Speaker has been sitting on our disqualification petition since 8th August last year”, says GPCC President Girish Chodankar, also the petitioner.

According to him, there were only two hearings held till date, on 15th October last year and 13th February this year.

The Congress is primarily relying upon the Supreme Court judgement delivered on 18th March this year related to Manipur cross-over. Former Congress MLA Th Shyamkumar Singh overnight shifted to the BJP and joined the cabinet without re-election.  

Pending hearing, Supreme Court restrained him from entering the Assembly and stripped him off his cabinet berth till further order. The apex court also made it mandatory for the Speakers of Assemblies to dispose of the disqualification petitions within 3 months. (Keisham Singh v. Hon’ble Speaker, Manipur Legislative Assembly and Ors.)

As Congress in Goa had filed the petition in August last year, Girish points out that it has been pending before the Speaker for the last nine months.

“Even if we exclude 2 months of lockdown,  it becomes 7 months in total violation of the three-month deadline set by the Supreme Court”, Girish adds.

Based on this latest judgement of the Supreme Court, he has prayed all the 10 MLAs be restrained from entering Goa Assembly while three ministers – Babu Kavalekar, Philip Neri Rodrigues and Jennifer Monserratte, be also dropped on the lines of Manipur judgement.

THE ISSUE OF TWO THIRD

The Congressmen (including one woman) had taken enough care of being two third of the legislative party’s strength while splitting. Out of 15, 10 had split to join the ruling BJP, a legal requirement as per the Tenth Schedule of the Constitution of India.

The Congress had however approached the Speaker and now the Supreme Court, terming it blatantly illegal.

Why and How?

The petitioner argues that the split by two third of legislators becomes legal only when the original party merges into another party. It’s a prerequisite of Para 4 of the Xth Schedule.

Accordingly, the 10 MLAs claimed that they have merged the Congress into the BJP and the Speaker also recognised it.

But in reality, points out the petition, the Congress still exists in the Assembly with Digambar Kamat as the Leader of the Opposition belonging to the second largest Congress party.

And the petition also argues that the Election Commission of India has not recognised the alleged merger till date.

WHY NOT HIGH COURT?

The petition has also dealt with the issue when the Congress had not approached the High Court before coming to the apex court. In this regard, the party has pointed out four different cases.

A) While referring to 2006 case of Haryana (Jagjit Singh v. State of Haryana), the Karnataka High Court this year has acknowledged (Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly) that Supreme Court can deal with such cases directly.

B) In case of Manipur (Keisham Singh v. Hon’ble Speaker, Manipur Legislative Assembly and Ors.), the Supreme Court had entertained direct petition, without directing the case to the High Court. The order was expressly made under Article 142, which the High Court has no powers to deal with.

C) The Bombay High Court in 2014 (Sanjay Lakhe Patil v. Speaker) held that the High Court cannot pass directions based on precedents of the Supreme Court, which are based on Article 142.

D) The SC has held, in two cases of 1999 and 2009 (CM Singh v. HP Krishi Vishwa Vidyalay & Anil Kumar Jain v Maya Jain) that the High Courts do not have powers similar to those exercised by the Supreme Court.

WHAT IF DISQUALIFIED?

Will the BJP government collapse if 10 MLAs are disqualified by the Supreme Court or restrained from entering the Assembly?

No way.

In such circumstances, the strength of the House would reduce to 30.

Even after losing 10 MLAs, BJP would have 17 legislators left, which is more than the half mark of 30. In addition, independent Govind Gaude is in the government, making it 18; a comfortable majority.

Chief Minister Dr Pramod Sawant could continue ruling without any hassles or taking help of the non-BJP legislators: the Congress (5), Goa Forward (3), MGP (1), NCP (1) and Independents (2).

However, the Congress would benefit, in order to make their one-time 10 colleagues totally powerless!

The petition before the Supreme Court thus looks like a fight not against the BJP but the own party colleagues of the ‘poor’ Congress party!


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Previous Comments

Although this looks technically fine, it will not benefit congress in by-election because of immature outbursts of Rahul Gandhi. Congress has taken a severe beating on national arena

- Chintaman G. Shet Verenkar, Ponda | 03 rd July 2020 23:30

 

Disqualify and ban all these mla for 6 years.

- J G, Panjim | 29 th June 2020 19:28

 

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