Six Rajasthan MLAs, who were elected to the State Assembly on Bahujan Samaj Party (BSP) tickets and later merged with the Indian National Congress (INC), have approached Supreme Court seeking transfer to itself a petition filed in Rajasthan HC challenging the Speaker's order approving their merger with Congress.
The petition in Rajasthan HC has been filed by Madhan Dilwar, BJP MLA and is listed before the single bench of HC on August 11.
The present transfer petition points out that the merger of the "entire legislative Party of the BSP" with the INC was recognized by the Speaker of the State Assembly who subsequently went on to dismiss a disqualification petition "for non-compliance of Rule 6 of the Rajasthan Legislative Members (Disqualification on the ground of defection) Rules, 1989."
The petition states that other matters involving the interpretation of Paragraph 4 of the Tenth Schedule of the Constitution are pending before the Top Court. The petitioners argue that the Guwahati High Court had held that the only requirement to be fulfilled is that of a merger of legislative parties and not political parties. The matter is pending before the Apex Court and in interest of justice, this matter must also, therefore, be transferred to the Top Court.
It is also pointed out that "the Respondents have raised the same questions on which similar matters are already pending relating to the interpretation of Paragraph 4 of the Tenth Schedule to the Constitution."
The petitioners further aver that the Court may bring before itself any matter when it is satisfied that the same involves substantial questions of law of general importance.
"Under Article 139A(1), this Hon'ble Court is empowered to withdraw to itself any cause that is pending consideration of any High Court, if it is satisfied that the cause involves substantial questions of law of general importance."
It is further argued that the Constitution only recognized the concept of 'political parties' after the 52nd Amendment in 1985 for the limited purpose of curbing political defections in the legislature.
"There is no other purpose of the Tenth Schedule. The Constitutional validity of the Tenth Schedule was upheld by a Constitution Bench of this Hon'ble Court in Kihoto Hollohan v. Zachillhu & Ors., (1992) Supp (2) SCC 651", argue the petitioners.
The contention of the petitioners is that Paragraph 2 of the Tenth Schedule lays down the circumstances under which a legislator would be liable to be disqualified for defection, while Paras 3 and 4 are exceptions to the Rule.
"It is submitted that the Tenth Schedule is applicable only to members of the Legislature, and only for the purpose of disqualification of such members in the event of defection, unless excepted…
…It is relevant to note that the entire purport of the Tenth Schedule to the Constitution is only to examine the evil of political defections, and the recognition to political parties is only limited to those in the legislative chamber, and no more. The recognition of "political parties" under the Tenth Schedule is different from the recognition of "political parties" under the Representation of Peoples Act, 1951 or the Rules and Orders made thereunder."
It has thus been urged that, under the scheme of the Tenth Schedule, the subjective satisfaction of the Speaker regarding the merger of "two-thirds" of "the legislature party" with "another political party" is determined if the Speaker deems that "the original political party" has merged with another political party, immunizing such members of the House from disqualification under Para 2. The issue is put across by the petitioners as follows-
"On a complete reading of Paragraph 4, it is clear that the merger of two-thirds of the legislature party with another political party would suffice for not attracting disqualification under Paragraph 2, even if the parent political party does not merge with another political party. If that were not the case, as is pleaded by Respondent No. 2 before the Hon'ble High Court, it is submitted, there would be no need for sub-paragraph (2) of Paragraph 4. It is submitted that the deeming fiction under sub-paragraph (2) limits the application of the merger within the four walls of the Legislature, and is not concerned with political activities outside the Legislature."
The 6 MLAs argue that once the Speaker is satisfied that 2/3 of the Legislature party has merged with the other party, there cannot be any disqualification as the law is not concerned with happenings outside the legislature. It also added that in this case, the entire BSP Legislature party decided to merge with INC and there could not be a case of disqualification.
"The Speaker of the Legislature, while acting under Paragraph 4(2) is not concerned with the happenings outside the legislature, so long as two-thirds of the legislature party has accepted the merger as contemplated. It is submitted that in the present fact situation, the entire Legislature Party of the BSP has merged with the Legislature Party of the INC, and therefore, the condition laid down in sub-paragraph (2) of Paragraph 4 is satisfied to not attract disqualification under Paragraph 2."
Furthermore, it is urged that the Courts (Supreme Court or High Courts) cannot exercise the powers of judicial review in respect of purely political questions.
"The powers of judicial review can be exercised only in the event a constitutional or legal duty or obligation overlaps with a political question, and cannot be exercised for questions of a purely political nature. Therefore, the question of merger or otherwise, of a political party outside the Legislature cannot be examined by the Hon'ble High Court for the purpose of interpretation of Paragraph 4(2) of the Tenth Schedule, as the same is purely a political question and not a question that emanates from a constitutional duty or obligation overlapping a political question."
Contesting that the writ before the Rajasthan High Court is not maintainable, the petitioners have prayed that since similar matters are before the Apex Court, the aforementioned writ must also be transferred to the Apex Court in order to avoid any conflicting decision.
The Petition has been drawn by Advocates Amit Pai, Aditya Bhat, Rajesh Inamdar and Javedur Rahman