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6 BSP ticket-winner MLAs want Rajasthan HC petition to be transferred to SC

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New Delhi: Six MLAs, who were elected to the Rajasthan Assembly on BSP tickets, but later merged with the Congress, have approached the Supreme Court seeking a transfer to the top court a petition filed in the Rajasthan High Court. That petition sought the disqualification of these six MLAs for defiance of the BSP party whip and supporting the Congress.

The question of law which has been raised in the petition before the High Court is: “Whether for the purposes of para 4 of the Tenth Schedule of the Constitution, the original political party needs to be merged, apart from the merger of the Legislative party?

The petitioners have referred to a case where, a division bench of the Gauhati High Court in the case Speaker, Nagaland Legislative Assembly and Anr. Vs Imtilemba Sangtam, MLA & Ors  1 Guahati Law had taken the view that the only requirement is of the merger of the legislative party and there is no requirement of the merger of the political party by virtue of the deeming fiction under sub-paragraph (2) of Paragraph 4 of the Tenth Schedule.

Against this judgment, a special leave petition was filed, and leave has been granted and is presently pending.

It has further been submitted that Para 4 of the Tenth Schedule is only an exception to disqualification under Para 2.  The petitioners have further submitted that the only purpose of the Tenth Schedule is to examine the question of disqualification on the ground for defection under Paragraph 2, and Paragraph 4 is the exception carved out.

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It has been submitted that there is no need for a political party outside the Legislature to merge with another political party, for the exception under Paragraph 4 to be attracted. Further it is submitted that for the purpose of “merger” in Paragraph 4(2), the Speaker is not concerned with political activities outside the Legislature.

The petitioners have further submitted that the entire basis for the Writ Petition pending before the High Court is that there has been no merger between the BSP and the INC. It is submitted that as aforementioned, 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. 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.

Moreover the petitioners have pointed out that  the Supreme Court and the  High Courts cannot exercise the powers of judicial review in respect of purely political questions, referring to the case of SR. Bommai v. Union of India, where the Supreme Court has held that per curium, has held that the Courts must not enter into the political thicket.

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Hence in the light of the abpve submissions the petitioners have prayed that Writ Petition filed by the Respondents is thus totally non maintainable and deserves to be dismissed in limine. However, in view of the fact that a similar matter is  pending, this transfer petition has been  filed under Article 139A(1) of the Constitution of India to avoid any conflicting decision.

–   India Legal Bureau

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