Anti-Defection Law : 2/3rds Of Legislature Party Is Sufficient For Valid Merger? Supreme Court To Decide In Goa MLAs Case

The MLAs joined the BJP in 2019. The High Court had held that it was a case of merger as the MLAs who joined the BJP constituted 2/3rds of the Congress MLAs. This view is challenged on the ground that 2/3rds of the entire political party, instead of the legislature party, has to be taken into account to determine if a valid merger is there.

A Bench of Justices MR Shah and Hima Kohli passed the order after noting that there is no urgency in the matter any longer. Senior Advocate Darius Khambatta said that the matter is just 'academic' now as the new term of the assembly has commenced after the 2022 elections.

"Even I have noted. Given the subsequent election, this SLP has become infructuous. We will keep the question of law open", Justice Shah observed.

"Nothing survives in this order. Out of 10 MLAs, only 3 were re-elected", Khambatta said.

But Goa has become a defection capital, the advocate for the petitioner submitted.

During the hearing, Justice Shah further commented,

".....to what extent our morality has gone down now!"

"The matter has been listed for the first time after 22nd April. We never sought any other adjournment. If your Lordships could list it tomorrow. 9 MLAs from political parties have defected. It's a very important to decide this issue, milords", the advocate submitted, hoping to get the matter adjourned.

However, the Bench proceeded to list it after a year.

"We will decide the law point", the Bench said, before parting with the matter.

The special leave petition argued that the High Court had committed a grave error in upholding the order of the Speaker on the mistaken premise that since the remaining MLAs constituted 2/3rd of their legislature party and had decided to merge with another party, they would enjoy the protection granted under Para 4 of Schedule X of the Constitution by invoking the deeming fiction contained in Para 4(2).

"Interestingly, such claim of valid merger of the legislature party was upheld without a semblance of the merger of the original political party which is a necessary pre-requisite as is apparent from a plain reading of Para 4(1) of Schedule X", the petition stated.

According to the petitioner, this interpretation would render Para 4 of Schedule X of the Constitution unworkable and would stand at odds with the object of enactment of the Schedule.

Case Title: Girish Chodankar v The Speaker, Goa Legislative Assembly & Ors | SLP(C) No. 5305/2022