TMC, Shiv Sena breakaway put focus back on anti-defection law, mergers

Recent political shifts have revived the question of how the Tenth Schedule's two-thirds merger exception operates, and whether numerical strength alone can shield legislators from disqualification

The latest developments involving rebel Trinamool Congress MPs and Shiv Sena (UBT) MPs have brought an old constitutional question back into focus: how far can legislators move away from their original political party without attracting disqualification under the Tenth Schedule?

 

The issue becomes particularly complicated when legislators do not merely claim to have switched political allegiance, but seek protection under the merger exception contained in Paragraph 4 of the Tenth Schedule.

 

This raises the question: Is a two-thirds majority of a legislature party enough to turn defection into a constitutionally protected merger?

What is the Tenth Schedule and the exception for mergers?

The anti-defection provisions were introduced into the Constitution through the 52nd Amendment in 1985, primarily to curb the practice of legislators changing political allegiance after being elected.

 

 

Paragraph 4 provides an exception from disqualification where there is a merger of the original political party with another political party.

 

The provision states that a member will not be disqualified where his/her original political party merges with another political party and s/he and other members satisfy the conditions prescribed under the Tenth Schedule.

 

Paragraph 4(2) further provides that a merger is deemed to have taken place if not less than two-thirds of the members of the legislature party concerned have agreed to such a merger. The two-thirds threshold is therefore central to the current cases.

 

But treating the provision as a simple mathematical formula would overlook a crucial distinction embedded in the Tenth Schedule — the distinction between the political party and the legislature party.

Political party versus legislature party

The distinction is not very simple in nature as it exhibits a far more serious legal character. The political party has an organisational existence beyond the legislature. The legislature party consists of the elected members of that political party in a particular House.

 

This distinction acquired particular constitutional significance during the Shiv Sena litigation. In Subhash Desai v. Principal Secretary, Governor of Maharashtra, the Supreme Court examined the relationship between the political party and its legislature party in the context of the 2022 Maharashtra political crisis.

 

The apex court through its reasoning firmly differentiates between the legislature party and

the political party for the purpose of the Tenth Schedule.

 

This raises the central question for the present controversies: can two-thirds of legislators effect a merger on their own, or must there be a genuine merger of the original political party with another political party?

 

The distinction becomes particularly important where the organisational wing of the original party does not merge with the new one.

Why the 2003 amendment matters

When the anti-defection law was originally enacted, it contained a separate exception for a “split”. A group comprising at least one-third of the members of a legislature party could avoid disqualification if the conditions relating to a split were satisfied.

 

The provision was widely criticised for facilitating defections rather than preventing them. The 91st Constitutional Amendment Act, 2003 abolished the split exception.

 

The merger exception, however, was retained, with the threshold maintained at two-thirds. This creates an important interpretative question. If Parliament deliberately removed the one-third split exception because it was being used to legitimise political defections, should the surviving merger provision be interpreted narrowly enough to ensure that it does not become a substitute for the removed split mechanism?

 

In other words, can a sufficiently large group of legislators achieve indirectly through a “merger” what the Constitution no longer permits them to achieve through a “split”?

The TMC controversy and the question of what a merger means

The TMC controversy, thus, raises a key issue. The rebel MPs are seeking to invoke the merger route while moving away from the party. This raises the issue of whether a group of legislators can themselves characterise their collective movement as a merger and thereby obtain protection from disqualification.

 

The distinction is crucial because the language of Paragraph 4 refers to the merger of the original political party, while Paragraph 4(2) uses the strength of the legislature party to deem such a merger to have occurred.

 

The two provisions therefore have to be read together.

 

A purely numerical interpretation could produce an anomalous result: legislators could leave a political party, join another formation and then invoke the fact that they constitute two-thirds of the original legislature party as protection against the very disqualification that The Tenth Schedule was designed to impose.

 

Rohit Jain, Managing Partner, Singhania & Co. told Business Standard, “Paragraph 4 does not, on its text, confer an autonomous power upon two-thirds of a legislature party to engineer a merger. Paragraph 4(1) first requires that the member’s original political party has merged with another political party. He further explains that Paragraph 4(2) deems such a merger to have occurred where not less than two-thirds of the legislature party agree to it. Thus, sub-paragraph (2) prescribes the legislative threshold for recognising an antecedent, demonstrable organisational merger”.

 

This has put the Paragraph 4 legal interpretation in limelight.

Kihoto Hollohan v. Zachillu

Under the Tenth Schedule, disqualification petitions are decided by the Speaker or Chairman of the concerned House. In Kihoto Hollohan v. Zachillhu, the Supreme Court upheld the basic constitutional validity of this arrangement, while holding that the Speaker’s decision would remain subject to judicial review.

 

The difficulty arises when decisions on disqualification are delayed. This situation can be seen in the recent TMC case, where Supreme Court had to direct the Lok Sabha Secretary for the timely disposal of the case.

 

This can also create a constitutional paradox. A solution intended to protect the stability of the political system can lose much of its practical effect if the adjudication takes place after the political consequences of the alleged defection have already occurred.

 

The question, therefore, is not merely whether the Speaker has jurisdiction, but whether the existing mechanisms can ensure a timely and credible determination.

The constitutional question ahead

The TMC and Shiv Sena (UBT) controversies are therefore not merely another chapter in India’s long history of political defections.

 

“If two-thirds of legislators can invoke Paragraph 4 without an actual merger of the original political party, the provision may operate as a collective-defection exception,” Alay Razvi, managing partner, Accord Juris, told Business Standard.

 

He added that the concern is sharper after the 91st Amendment abolished the one-third “split” defence (2003 amendments) precisely to prevent defections from being legitimised through numerical strength. However, the constitutional text expressly retains the two-thirds merger safeguard, and courts cannot simply delete it through interpretation. The appropriate safeguard is a rigorous inquiry by the Speaker into whether the statutory requirements are satisfied. A narrow, evidence-based application of Paragraph 4 is necessary to prevent the merger clause from defeating the anti-defection law’s purpose.

 

The two-thirds rule was intended to recognise genuine political mergers while preventing  small groups of legislators from escaping disqualification. But if numerical strength within a legislature party is treated as sufficient to establish a merger, the exception of merger could be used as a loophole for a switch from one party to another.

 

How the courts and constitutional authorities answer that question could determine whether the merger exception remains a narrow safeguard within India’s anti-defection law or exists as its most significant loophole.