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Bombay High Court judgement related to Anti-defection law:

GS Paper 2:

Topics Covered: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

 

Context:

The High Court of Bombay at Goa in its judgment, delivered on February 25, held that the former members of the Congress Legislature Party (CLP) in the Goa assembly who had defected to the BJP are exempt from disqualification under paragraph 4(2) of the Constitution’s Tenth Schedule, referred to commonly as the anti-defection law.

 

Why did the High Court rule so?

The court said that under sub-paragraph (2) of paragraph (4), the merger of this group of Congress MLAs with the BJP is deemed to be a merger of the original political party (Indian National Congress) with the BJP. Therefore, these members are protected under paragraph (4).

 

Provisions in this regard under the 10th schedule of the Indian Constitution:

Paragraph (4) of the Tenth Schedule exempts defectors from disqualification if their original political party merges with another party and two-thirds of the members of that party in the legislature agree with the merger.

  • Here, in the case of Goa, Ten of the 15 MLAs of the CLP in the Goa Assembly — two-thirds of the party’s strength in the House — had joined the BJP.

 

But, this judgement has raised a concern. What is it?

Paragraph (4) of the Anti- defection law contemplates the factual merger of the original political party.

  • However, in the latest judgment, Bombay High Court has held that a factual merger of the original political party is not necessary to seek exemption. And the merger of the 10 MLAs of the CLP with the BJP should be regarded as the Congress itself merging with the BJP.
  • The court has said, erroneously, that the two sub-paragraphs 1 and 2 of paragraph 4 should be seen as independent entities.
  • But, this opinion goes against the letter and spirit of the Tenth Schedule, paragraph (4) in particular.

 

How does this opinion go against the letter and spirit of the Tenth Schedule, paragraph (4) in particular?

Under this provision, for a member to seek exemption from disqualification, the merger of the original political party has to take place first, followed by two-thirds of the MLAs agreeing to such merger.

  • The words “such merger” make it clear beyond any shadow of doubt that the merger of the original political party has to take place before two-thirds of the members agree to such a merger.
  • The HC seems to have missed the significance of the words “such merger”. In fact, the members of the legislature cannot agree among themselves to merge as the court has said, but they can agree to a merger after it takes place.

 

Need of the hour:

The anti-defection law was designed to eliminate political defection. However, the judgment of the Bombay HC seems to assume that paragraph (4) of the 10th schedule is meant to facilitate defection. This judgment is likely to open the flood gates to defection. The Supreme Court must intervene quickly.

Read more about Anti – defection law here.

 

InstaLinks:

Prelims Link:

  1. Names of various committees and commissions with regard to Anti Defection law.
  2. Committees vs Commissions.
  3. Decision of presiding officer vs Judicial review.
  4. Merger vs Split of political parties.
  5. Is anti- defection law applicable to the presiding officer?
  6. Relevant Supreme Court cases and verdicts.

Mains Link:

Examine the provisions of Anti- defection law. Has this law largely failed to meet its objective? Discuss.

Sources: Indian Express.