The discussion here has the sole purpose of deciphering law and jurisprudence on the subject of deemed merger and disqualification under the tenth constitutional schedule known as the Anti defection law (the law) and any reference to either political party or a politicians are just for illustration. aim and make the discussion easy to understand.
Readers should know that more than 2/3 members of the Shiv Sena legislature party in the Maharashtra assembly led by Shri Eknath Shinde (Shinde faction) have aligned with the BJP resulting in the collapse of the MVA government. The question that is on the top of everyone’s mind is whether members of the Shinde faction will be disqualified under the law.
The answer to this question is “No” because of paragraph 4 (2) of the law and the interpretation given in this paragraph by the High Court of Bombay in the detailed and reasonable judgment delivered in February 2022 in the Girish Chodankar vs Speaker Goa legislative Assembly . The court there upheld the decision of the Goa assembly speaker not to disqualify members of the Congress party who are 2/3 of the members of the Congress legislature party. The appeal against this judgment is awaiting hearing in the Supreme Court. The reasoning given by the Bombay High Court is the same as that given by the full court of the Punjab-Haryana High Court in Baljit Singh Bhullar vs Speaker, Punjab Vidhan Sabha delivered in May, 1997.
Paragraph 4 (1) of the law lays down the merger of a political party with another party as the basis for exemption from disqualification. The merger of the original political party with another political party saves members of the party legislature from disqualification whether they become members of the merged party or do not accept the merger and function as a separate group.
Paragraph 4 (2) provides for a deemed merger (think not actual merger) of the original political party if and if at least two-thirds of the party members of the legislature (as different from the original party political) agreed to such a merger. Here the actual fusion does not take place outside the house nor does it take place indoors but it is considered to have taken place indoors. To describe the Shinde faction is considered to merge with the BJP.
It is thus evident that para 4 provides exceptions to para 2 (1) of the law which disqualifies the member on the ground of voluntary surrender of his membership of a political party or for voting in assembly against the whip issued by the leader. of the party. Thus, it saves the member from disqualification. .
The Bombay high court held that paragraph 4 (1) of the law carved out an exception to disqualification due to merger. Paragraph 4 (1) states that upon the merger of a member’s original political party with another political party, the member will not face disqualification regardless of whether he or she chooses to join the merger or disagrees with both.
Paragraph 4 (2) (relevant for our discussion) provides specific assumptions that are fictional in the context of a member’s original political party merger. Provided in this sub paragraph that for the purpose of sub paragraph (1), the merger of the original political party of a member of a House shall be deemed to have occurred “if and only” at least two-thirds of the according to “members of the relevant party of the legislature” in such a merger. This makes 2/3 of these members qualify for the exception engraved in para 4 (1) and saves them from disqualification.
The deemed fiction began on the strict condition of two-thirds members agreeing to the merger and paragraph 4 (2) works in a distinct field and is independent of paragraph 4 (1) (actual merger of the original political party).
To summarize paragraph 4 (2) considers a situation where there is no merger of the original political party and yet, it must be considered that such merger has taken place and that it saves members from disqualification only when at least 2/3 of the members agreed for the integration of the political party within the house.
The Supreme Court recognized and emphasized the position of the law that when the legislature in its wisdom incorporates a deemed fiction into a provision of law, the Court must proceed by treating that imaginary situation. as true and thinking as true its consequences.
Therefore, it is correct to assume that such a merger takes place through the operation of deemed fiction even if, in fact, there is no merger of the original political party. The Speaker under sub-paragraph (2) can decide only about the party of the legislature and whether two-thirds of the party members of the legislature agree for the merger and whether the answer is that the members agree. it will not be disqualified on the ground of merger even if one is deemed to be one.
The intention of parliament while incorporating paragraph 4 (2) is, to some extent, to enable members to make decisions in assembly according to the dictates of their conscience subject of course to a strict condition of two-thirds members. who together do it and quite a few. members here and there.
Before we end it is interesting to note that the Supreme Court has held that not only a member of the House but any interested person can file a petition for the disqualification of the member.
A disqualified member is also not eligible to be appointed as a Minister or to any remunerated political position until the end of his or her term or until he or she is re -elected whichever is earlier. It does not prevent a member from seeking re -election nor does it stop the member from being a member of the political party that nominated him or her as a candidate in the election.
The views expressed above are the property of the author.
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