THE INDIAN NATIONAL CONGRESS Vs. STATE OF GOA

JUDGEMENT

(1.) This Writ Petition was admitted on 20th June 2017. The order issuing Rule sets out in brief the rival submissions. Paragraphs 7 and 8 say that various aspects, including that of jurisdiction, would have to be examined. The order notes that at that time there was no Affidavit in Reply, and specifically says its observations are prima facie and tentative. Yet, there being arguable issues, the Court issued Rule. One of us (Ms Nutan D Sardessai J) was a member of the Bench that admitted the petition.

(2.) The pleadings are now complete. We have had the benefit of hearing Mr Desai for the Petitioners, Mr Doctor for Respondent No. 6 and Mr Lawande, the learned Advocate-General for Respondent No. 1. The following summary may lend perspective to the more detailed consideration that follows. We will omit the dates for the purposes of this summary, and come back to them later. 2. 1 Vishwajit Rane, Respondent No. 6 ("Rane"; "Vishwajit"), was elected to the Goa Legislative Assembly ("Assembly") on an Indian National Congress ("Congress") ticket in early 2017. The Congress secured 17 seats, and the Bharatiya Janata Party ("BJP") won 13 seats. The latter was invited to form the government. Respondent No. 5 was appointed by the Governor under Article 188 of the Constitution as the person before whom members of the Assembly would affirm oath before taking their seat until the Assembly chose the Speaker of the House (the 4th Respondent; "the Speaker"). The 5th Respondent was, for these purposes, the pro tem Speaker. 2. 2 The Congress moved the Supreme Court, which ordered a floor test. The Congress issued what it calls a 'whip' to vote against the BJP in the floor test. On the date of the floor test, Rane was absent from the House before the vote. The BJP won the floor test. Later that day, Rane returned to the Assembly and tendered his resignation to Respondent No. 5, then the pro tem Speaker, who accepted it. Later that very day, Rane also resigned from the Congress party. A short while later, he joined the BJP and was inducted as a Minister, a post he had held earlier. In a by-poll later in the year, August 2017, he was returned to the Assembly on a BJP ticket. 2. 3 The Congress says this is a 'fraud on the Constitution'. It says Rane earned a disqualification when he absented himself from the vote at the floor test. It also says the Speaker was wrong in accepting his resignation; he should have assessed whether Rane's resignation was genuine. In short, Rane was instrumental in engineering or ensuring Congress' defeat at the floor test in March 2017. According to Mr Desai for the Congress, the disqualification is extreme: Rane was and is only ineligible to continue as a member of the House, but, on account of that 'disqualification', cannot offer himself for elections at all for the next five years. 2. 4 Whether 'a member of a House has become subject to a disqualification' is for the Speaker to decide. When the Speaker accepted Rane's resignation, Rane ceased to be a member of the House; and the Speaker ceased to have jurisdiction to decide on his disqualification, one earned while he was a member. In other words, he ceased to be a member of the House before the question arose, i.e., before a disqualification petition could be brought to the Speaker for his decision. That, according to the Petitioners, ousted the Speaker's jurisdiction, and that is, according to them, the fraud on the Constitution. In that scenario, the Petitioners ask us to decide whether Rane had earned a disqualification by being present during the vote on the floor test. 2. 5 These are the prayers in the Petition:

(3.) The facts are many, and they are largely undisputed. 3. 1 The 1st Petitioner is the country's Congress Party, a registered political party. The 2nd Petitioner is the 1st Petitioner's territorial division in Goa. Petitioners Nos. 3 to 17 are elected sitting members of the Goa Legislative Assembly. The 1st Respondent is the State of Goa. Respondents Nos. 2 and 3 are, respectively, the Election Commission of India and the Goa State Election Commission, both constituted under Article 324 of the Constitution of India. The 4th Respondent is the present Speaker of the Goa Legislative Assembly. The 5th Respondent, as we have seen, was, pro tem, the person before whom, by an order of the Governor, members of the Legislative Assembly were to affirm oath before taking their seats and until the Assembly chose a speaker. 3. 2 Vishwajit Rane, the 6th Respondent, is the scion of a prominent political family in Goa. His father, Pratapsingh Raoji Rane, was previously a Chief Minister of the State himself for six terms: 1980-1985; 1985-1989; a few months in 1990; 1994-1999; briefly in 2005, and then from 2005-2007. Previously a member of the Maharashtrawadi Gomantak Party ("MGP"), Pratapsingh has been a member of the Indian National Congress since the mid-1970s. The Rane family is old, and traces its lineage back several generations to the Maratha Ranes. The family has substantial holdings and estates in the State's north-east Sattari region. 3. 3 Vishwajit Rane followed in his father's political footsteps and joined in the Congress. In 2007, he contested the Goa Legislative Assembly elections as an independent. This was because the Congress had decided at the time to field more than one candidate from the same family. Vishwajit resigned from the 2nd Petitioner, the Goa Pradesh Congress Committee, and from membership of the Congress itself. That year, the father won on the Congress ticket from the Poriem constituency; and the son was returned from the Valpoi constituency as an independent. Vishwajit was inducted as a Cabinet Minister. He was given the portfolios of Health, Agriculture and Craftsman Training. The Chief Minister was then Digamber Kamat. 3. 4 On 24th June 2010, Vishwajit resigned as an independent Member of the Legislative Assembly ("MLA"), and from the Cabinet. He successfully contested a by-election from Valpoi on a Congress ticket. He resumed membership of the Congress and was promptly sworn in as a Cabinet Minister on the same day. 3. 5 In the 2012 Goa Legislative Assembly elections, Vishwajit took the Valpoi constituency on a Congress ticket. 3. 6 On 4th January 2017, elections were notified to the Goa Legislative Assembly. Vishwajit filed his nomination as a Congress party candidate from the Valpoi Assembly constituency. He did withdraw by the last date stipulated for withdrawals. Polls were held on 4th February 2017. The results were declared on 11th March 2017: neither the BJP nor the Congress had an absolute majority of 21 seats. The Assembly has 40 members. The Congress returned 17 elected candidates, while the BJP returned 13. There were some eight others who belonged to neither party: three to the MGP, another three from the Goa Forward Party, and two independents. The BJP, led by the present Chief Minister, Mr Manohar Parrikar, leading a caretaker government, claimed it had the support of these eight, and thus had a majority, and would form the government. On 12th March 2017, the Governor, Her Excellency Ms Mridula Sinha, in exercise of her powers under Article 184(1) of the Constitution of India appointed Mr Parrikar as the Chief Minister of Goa. The Congress protested, and wrote to the Governor saying it should have been given the first opportunity as it was the single largest party. 3. 7 The Congress moved the Supreme Court the next day, 13th March 2017, in WP (C) No D No 8311 of 2017. On that day, nine ministers were sworn in as part of the BJP Government; of these, some seven were outside supporters. The Supreme Court was shown the Governor's order appointing Mr Parrikar. It was also shown the list of outside members said to be supporting the BJP. The Congress questioned the correctness and validity of the support. In its order of 14th March 2017, while disposing of the petition, the Supreme Court said,: