00:00So let's raise some big questions.
00:02Has this merger with the BJP of the ARP, is it valid or illegal?
00:07Did the Rajasabhad Chairperson act in haste in allowing the merger to go ahead?
00:12Is it time to review anti-defection laws in the country?
00:15My first guest is Abhishek Manu Singhvi, Senior Congress MP and eminent jurist.
00:21Appreciate, Dr. Singhvi, you joining us.
00:23Let's be very clear.
00:24Seven out of ten of the ARP MLAs defected joined the BJP and said they had merged.
00:30That's more than two-thirds, which effectively means that it's a split followed by a merger
00:35and therefore many believe it doesn't attract the anti-defection law.
00:38Do you agree or not?
00:41I'm quite astonished, Rajdeep, at the lack of legal knowledge, familiarity with elementary
00:48principles of law.
00:49And though it might sound technical, allow me a minute to explain to your viewers why
00:54this is wrong completely.
00:56The tenth schedule has a para four.
00:59It makes a deeming fiction exception that something will not be considered defection
01:04if two, not one condition is satisfied.
01:07The whole disinformation is that only one condition is required to be satisfied, that you two-thirds
01:13in a legislature party agree.
01:15That's so fallacious of the face of the text.
01:18Two conditions are required.
01:20That condition one, a political party X must agree to merge itself.
01:26Remember the word is political party with Y or X with another political party forms a new
01:33party Z.
01:34And secondly, and cumulatively, separately and cumulatively, the legislature party of that
01:44political party, two-thirds of those approve of such merger.
01:49Now, that is number one, textually so elementary, it is written in black and white.
01:55Dr. Singhvi, Dr. Singhvi, I'm sorry to push back.
01:58That's not what, no, no.
01:59Allow me a minute.
02:00That's not what happened in Goa.
02:02I'll give you the example of Goa.
02:03In 2022 and 2023, when a group of Congress, MLAs decided to switch to the BJP, the Bombay
02:11High Court ruled in their favor.
02:13The Bombay High Court didn't say that the Congress, that the Congress party has decided
02:17to merge with the BJP.
02:19Allow me just a couple of minutes more and you will continue to be shocked more and more.
02:23So, first is the text.
02:25Second, the text uses two different words.
02:29Condition one uses political party.
02:32Condition two, the constitution uses legislative party.
02:36So, in the Shivasaina Subhash Desai case, the exact argument was made that please conflate
02:45and treat political party and legislative party as the same.
02:50The court specifically in Paras 103 and 105 negatives it.
02:56Supreme Court.
02:57I can show you the text.
02:59No, no, I know it.
02:59In 2023, sir, 2023, Chandra Chute judgment in the Shivasaina case runs counter to what was
03:06decided in the Goa cases.
03:08So, there are different judgments.
03:10Whether MLAs on their own can defect or the party has to merge.
03:14How can Chandra Chute judgment in the Supreme Court run counter to a High Court, Rajdeep?
03:19Please don't say that.
03:20Chandra Chute judgment so-called is Subhash Desai in the Supreme Court.
03:24Yes.
03:25What you are citing is a Goa judgment.
03:26Yes.
03:27What you should add, that's my point number three, that Goa judgment is now pending in
03:31the Supreme Court.
03:32And I have no doubt that if it is decided, it has not been decided, it will have to follow
03:37the law of Subhash Desai.
03:38Now, two more points very quickly.
03:40Apart from that, there is a High Court Punjab and Haryana judgment of Kuldeep Bishnoi.
03:46It says in black and white in para 22, 23 and 37 that not one but two conditions have
03:52to be satisfied.
03:53And then there is another Bombay High Court judgment in 2016 by a full bench.
03:58Bombay High Court or any High Court full bench means three judges sit.
04:02Normally, judges of High Court sit in two.
04:04That is Shah, Farooq, Shabeer.
04:06They again say it's a cumulative twin condition.
04:09Now, what has happened here is that A, astonishingly, and remember, the Honorable Chairman or the
04:15Speaker are only an adjudicator under the 10th Schedule.
04:18They are supreme in the affairs of the House but not under the 10th Schedule.
04:22Remember that.
04:23The Chairman and the Speaker are subject to full judicial review in their capacity as the
04:28presiding officer of the House.
04:30They have astonishingly what is written in these judgments.
04:34I have given you the paras, they must examine the claim to see whether the political party,
04:40in this case AAP, decided to merge with another political party and cumulatively the two-thirds
04:47of the legislature party, a different word used in the same act, agreed.
04:52Now, it is common ground that the AAP did not intend to, did not try to, did not merge
04:57with anybody.
04:57So, there is no point picking up one condition of the Rajya Sabha and saying 7 out of 10 have
05:03agreed.
05:03So, you are saying that the Chairman, am I, in conclusion, am I to say that you are saying
05:08the Chairperson acted in haste, that he should have examined the Chandra Choo judgment and
05:14you believe that until the legislature, until the AMRB party had decided to merge with the
05:19BJP, what the legislature party does is deemed illegal and void.
05:25Am I correct?
05:25The answer to all is yes.
05:28After adding that the Honourable Chairperson acts as an adjudicator in this role of 10th
05:33schedule, he is like a judge and he is subject to judicial review.
05:37He has erred, he has in fact acted too much in haste by not giving a reasoned order.
05:42As far as I know from the press, the AAP had filed a complaint before him.
05:47Without giving a reasoned order, how can he recognize 7 people as a merge group with the
05:52BJP?
05:53They are liable to defection.
05:54They are liable to defection law because they have not even attempted, even the claim
05:59of the 7 does not suggest that the political party AAP had made any move to merge with
06:05any political party.
06:06That means condition 1 stated by the Supreme Court, by Bombay High Court and by Punjab
06:10and Anand High Court is not fulfilled.
06:12Yeah, but as I said, there are conflicting judgments, sir.
06:15The Goa case conflicts with what happened in Maharashtra and then let me leave it there.
06:18Sir, the text is clear.
06:20Okay.
06:21Okay.
06:21I have no doubt about it.
06:22Let me leave it there, Dr. Singhvi.
06:24You've given us one perspective.
06:26I appreciate as always you joining me.
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