In response to a plea against the mass defections of the Shiv Sena in 2022 and the NCP this year, the Bombay High Court on Wednesday directed the Central Government to file its reply to a public interest litigation (PIL) petition challenging the validity of paragraph 4 of the Constitution’s 10th schedule, which allows defection in the case of a merger by two-third members of a legislative party.
Notice issued to Attorney General
A notice was also issued to the Attorney General R Venkataramani by a division bench of Chief Justice DK Upadhyaya and Justice Arif Doctor.
As per the said provision, members of the legislature are exempted from disqualification if two-third of a legislative party consents to merge with another political party.
The plea was filed against the vivisections in the two political parties three months ago by Meenakshi Menon, 64, a social activist and media and marketing professional and founder of the NGO Vanashakti, through advocates Ahmad Abdi and Eknath Dhokale. Menon’s plea has urged the court to declare that the defecting legislators are not entitled to participate in House proceedings or hold any constitutional post unless the issue relating to their disqualification is decided.
The PIL cited the intense political heat that Maharashtra state has witnessed since the 2019 Assembly elections. It refers to Eknath Shinde from the Shiv Sena and Ajit Pawar from the NCP joining hands with the BJP.
Constitutional violation
The plea states that the paragraph 4 is in violation and contravention of the “basic structure” of the Constitution, restricting the power of Parliament or the legislature to alter the fundamental features of the Constitution. The doctrine is a form of judicial review that courts use to test the legality of any legislation.
Advocate Abdi submitted that while voters give their votes to a particular party, legislators are being traded and that the loophole for defection needs to be sealed. “It is happening every day and joining another party for the lure of office or money and voters not taken into confidence. The one-point programme is to capture power by hook or crook,” he argued.
The court has asked Menon to file a rejoinder affidavit to the reply filed by the central government. It has kept the petition for hearing after eight weeks.
