Anti-Defection Law: Goa shows the way!!!

By Cleofato A Coutinho
25 June 2010 00:58 IST

With Babush Monsserate and Vishwajeet Rane joining the Congress Party, what has been speculated has happened. Babush Monsserate, who was elected on the UGDP ticket, has not resigned his Taleigao Assembly seat while Vishwajeet Rane has quit the Valpoi Assembly seat to re-enter the Assembly on the Congress Party ticket.

The debate on whether Mr. Monsserate should have resigned and/or whether the UGDP could be merged without the UGDP as registered with the Election Commission of India may look academic. But such debates contribute to the evolution of the law. The North Eastern states and the state of Goa has contributed a lot to the evolution of the anti-defection law in the country. Since the states small the legislature parties small and splinter the groups smaller. It became easy to manage splits. Instead of individual defections, groups defected. The net result is that the concept of split is done away with.

Our state must also be complimented for showing another way of members resigning and recontesting to become ministers since the anti defection law does not bar such members from being MLAs. May be the Parliament shall take note of that syndrome now that a state like Karnataka has followed us in that direction. The appropriate remedy may be to bar such members from being members of the House for a fixed period of time.

That Goa has been a laboratory for various tests under the Anti Defection Law has never been in doubt. The Supreme Court judgement in the Ravi Naik (AIR 1994 SC 1558) case settled the matter pertaining to the split (then existing in the Xth schedule). In the matter of Dr. Luis Proto Barbosa (AIR 1992 SC 1812), the Hon'ble Supreme Court held that the exemption to the Speaker on the Xth schedule would not be available when the Speaker defects from the party to which he belonged and resigned from the office of the Speaker thereafter. In yet another judgment, Dr. Kashinath G. Jhalmi (AIR 1993 SC 1873) the Supreme Court held that the Speaker of the Assembly has no power of review.

A new dimension has now been added by the case of Babush Monseratte by not resigning the Taleigao seat and continuing as the member of the House. Probably Vishwajeet Rane is unable to take such a bold stand. His father being the Speaker of the House and in case of a disqualification petition, father sitting on son's disqualification would be another first for our state which has been rightly avoided.

As I pen these lines, it is not clear as to whether the case is that of merger of the UGDP (original political party) as defined in the Xth schedule or a case of joining the Congress Party. In either of the two cases, the matter has to be referred to the decision of the Speaker who functions as a tribunal in the matter pertaining to disqualification under the Xth schedule. It is only the State Congress President that has claimed the merger while Mr. Monseratte has preferred his joining as return of the prodigal. What that means may be known only if one gets to known his communication to the Speaker.

The anti defection law has number of lacunae. It could be argued the disqualification in case a member joins another party is automatic and that there is no escape from that without a case for merger being made out. But then that matter has to be adjudicated by the Speaker and unless the Speaker adjudicates on the issue, a member functions as MLA.

The other debate is on the question as to the impact of a merger if a stand of a merger is taken. Two issues come to the fore. One is to whether the merger can take place without the UGDP as registered with the Election Commission of India taking a decision of its merger. Sec. 4 saves a member from disqualified in case the original political party merges with another political party. However at sub clause 2 of paragraph 4, it is stated "the merger of the original political party of a member shall be deemed to have taken place if, and only if, not less of 2/3rd of the members of the legislative party concerned have agreed to such a merger". The argument is that 2/3rds of the legislature party ought to ratify the decision taken by the original political party (parent party). This argument is on the basis of the use of words "original political party" in the Xth schedule and the deeming provision using the legislature party.

In case the argument that the original political party has to first take a decision of merger which can only be ratified by the Election Commission of India, would mean that the Election Commission of India should also take a decision on the merger, which requires ratification by the 2/3rd members of the legislature party. The Xth schedule does not speak of the Election Commission of India. The words "original political party" and the "legislature party" though defined in the Xth schedule, has no reference to the Representation of the Peoples Act under which the parties are registered and the Election Commission of India which registers the parties.

In the case of Mayawati V/s Markandeya Chand Justice Thomas, who held certain MLAs belonging to the Bahujan Samaj Party being disqualified, said that in case of split two conditions should apply (1) that a claim that the split in original political party resulting in the constitution of a group and (2) that group ought to be 1/3rd of the members of such legislature party. That the party as registered in the Election Commission of India should split, which should be reflected in the legislature party, has not been held to be a pre condition even for split. In the same judgment, Justice Srinivasan holds that the original political party and the legislature party to be distinct. That was on the question of split, which no longer exist in the constitution.

If the deeming provision for merger is taken to account, it could be construed that for the purposes of the anti defection law, merger has taken place and that the group constituting 2/3rds would not suffer disqualification. In the case at hand, the member being the sole member of the party could claim such a merger to save his disqualification. But then the original political party as registered with the Election Commission of India shall continue to be so registered.

The problem with the law is the adjudicatory process created through the office of Speaker. The Hon'ble Supreme Court has held the Speaker to be holding a high, important and ceremonial office, he being very embodiment of propriety and impartiality on the basis of position of Speaker in England, without taking into consideration the realities in our State and the country.

The Anti Defection Law deserves a re look with the adjudicatory machinery handed over an impartial body, probably the High Court to give a time bound judgement.
Disclaimer: Views expressed above are the author's own.

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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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Thanks for enlightening on anti-defection law.

- sanjay dessai, curchorem Goa | 25 th June 2010 22:24


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