NEW DELHI, Dec 1: Noted constitutional experts are unanimous that it is the Speaker of the Legislature who alone holds the key to the issue of application of anti-defection law to 12 others MLAs who left Congress and joined AITC recently.
Famous constitutional lawyer and former Secretary General of Lok Sabha PDT Achary when contacted on Wednesday commented that the speaker has to take a call, if he is satisfied, against the MLAs, under anti-defection law. If aggrieved by speaker’s ruling, the MLAs can approach the court law for redressal.
Another Supreme Court lawyer and expert in constitutional matters, Geeta Luthra, also opined that the tenth schedule of the Constitution is clear and categorical in respect of Anti Defection law. If the two-third number is proven then anti defection will not apply. In the case of Meghalaya two-third of the MLAs led by Mukul Sangma, resigned from the party to join the AITC and decision was formally conveyed to the Speaker Metbah Lyngdoh.
These legal practitioners pointed out that although para 4 of the 10th Schedule of the Constitution virtually prohibits defection all together following the last amendment, it allows merger of one political party with another with sanction of its legislative unit having two-third majority. At the same time, the same paragraph excludes from disqualification in the case of mergers of political parties provided that such a merger is backed by two-thirds of the members of the legislative party.
Some knowledgeable circles, however, point out that the AITC is not a political party in existence in Meghalaya. Further, Congress being a national party cannot go by the decision of its state unit even if it is supported by two-third of its MLAs, they said.
The Speaker had earlier ruled out any illegality in their joining the TMC. But he had also sought top legal opinion in case the matter goes to court.
This provision in Paragraph 6 mandates the Chairman or the Speaker of the respective legislative house to be the ultimate decision-making authority in case the decision for disqualification arises. It also allows the courts to intervene in matters of disqualification.