A case for removal of Paragraph 4 of the Tenth Schedule to the Constitution

In light of the recent verdict of the Bombay High Court's Goa bench to uphold the Goa Legislative Assembly Speaker's decision to dismiss pleas seeking the disqualification of 12 Congress MLAs who had switched to the BJP, NIKHIL PARIKSHITH examines the lacuna in the Constitution's Tenth Schedule, which was brought in to arrest defections.

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ON February 24, the Goa Bench of the Bombay High Court delivered a judgement on the concept of 'deemed merger' of a political party under paragraph 4 of the Tenth Schedule to the Constitution.

The Goa Bench was hearing a challenge against the decision dated April 20, 2021 of the Speaker of the Goa Legislative Assembly whereby the Speaker had dismissed the disqualification petition filed by the Goa Pradesh Congress Committee [GPCC] against ten Indian National Congress Members of Legislative Assembly [MLAs], who had en masse switched allegiance to the Bharatiya Janta Party [BJP] on July 10, 2019. (For a primer on the politics in Goa, see here)

Relying upon the deeming fiction created by paragraph 4(2) of the Tenth Schedule, the high court held that since factually, the ten Congress MLAs comprised of two-thirds of all Congress members in the Assembly, there was a "deemed merger" between the two parties, when these Congress MLAs switched allegiance to the BJP. Consequently, the bench concluded that these 10 MLAs were not liable to be disqualified under paragraph 2 of the Tenth Schedule. In doing so, the high court gave legitimacy to the action of the Speaker in allotting seats to these 10 MLAs along with BJP members in the house.

A case for removal of Paragraph 4 of the Tenth Schedule to the Constitution

Overview of paragraph 4 of Tenth Schedule

The case for deleting paragraph 4 of the Tenth Schedule