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In an interesting turn of events, the breakaway faction of the All India Trinamool Congress (AITMC) in the Lok Sabha announced merger with Nationalist Citizens Party of India (NCPI), a regional party. The faction, with 20 MPs, has sought to invoke the merger exception under the Tenth Schedule on the grounds that it has the support of two-thirds of AITMC’s legislature party in Lok Sabha. The official leadership of AITMC, however, has denied any such merger asserting that the party continues to exist as an independent political organization.
While this may appear to be just another episode of political realignment, it raises a deeper question about the working of the anti-defection law: Does the Tenth Schedule permit two-thirds of a legislature party to effectively merge a political party with another political party? The answer to this question goes to the heart of the merger exception, a provision that was designed to safeguard genuine mergers between political parties.
The Tenth Schedule was enacted in 1985 to curb the politics of floor crossing among elected legislators. It provides for disqualification of legislators who voluntarily give up membership of their political party or defy its directions in the House. Yet, the law has often operated less as a deterrent to defections and more as a framework within which they are meticulously planned.
Much of this can be attributed to the exceptions inherent in the law itself. The Tenth Schedule never provided for an absolute prohibition on defections. Instead, the law exempted disqualifications in cases of a “split” in a political party and “merger” of political parties. In 2004 the split exemption was omitted due to its excessive misuse while the merger exemption continued to survive. Over the years, the merger exception has emerged as the principal route for group defections to seek constitutional legitimacy in India.
Housed within Paragraph 4 and divided across two sub-paragraphs, the merger exception requires two conditions to be fulfilled: first, an original political party must merge with another political party, and second, a minimum of two-thirds of the members of the legislature party must consent to the merger.
Only when these two conditions are met, in this exact sequence, can a group of elected legislators claim exemption from disqualification on grounds of merger. However, in practice, the interpretation of Paragraph 4 has strayed from its original design, focusing primarily on the second condition alone. This has led to an approach where the numerical majority of two-thirds of the legislature party has been deemed to be sufficient condition to claim a merger, regardless of the merger of the original political party with another party.
Several High Courts have supported such interpretation by reading the two sub-paragraphs disjunctively, treating them as independent from one another. This creates a deeming legal fiction, whereby the consent of two-thirds of legislators is deemed to constitute an actual merger of original parties. Such an interpretation not only disregards the distinction between a legislature party and an original political party but also renders the organizational structure, leadership, and membership of the original political parties irrelevant. As a consequence, it allows two-thirds of a legislature party to redefine the fate of the very political party from which they derive their existence.
The difficulty with this approach is that it alters the constitutional relationship between the political parties and their elected legislators that was established by the Tenth Schedule itself. The Tenth Schedule recognizes that elected legislators derive their political identity from the party under whose symbol they are elected and thus voluntarily abandoning the party or defying its direction attracts disqualification. The disjunctive reading of Paragraph 4 reverses this jurisprudence all together.
The uncertainty surrounding the interpretation of Paragraph 4 stems from the absence of a settled judicial position. A Constitution Bench of the Supreme Court in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), cautioned against conflating a legislature party with an original political party and supported that a merger must take place between original political parties only with the support of two-thirds of the legislature party.
However, a contrary line of interpretation exists. The Goa Bench of the Bombay High Court in Girish Chodankar v. Speaker, Goa Legislative Assembly (2022) upheld a merger by two-thirds of the legislature party with another political party, even in absence of merger between original political parties. This decision of the High Court is under challenge before the Supreme Court and awaits a settled judicial position on interpretation of the merger exception.
The claim of merger by the breakaway AITMC faction highlights the consequences of a disjunctive reading of Paragraph 4. The constitutional question here is not whether the breakaway faction commands the support of two-thirds, but whether the AITMC, as the original political party, has merged with NCPI in the first place. By disputing the very existence of such a merger, the party leadership calls into question the constitutional basis of the breakaway faction’s claim to protection under Paragraph 4. But, in absence of a settled judicial position, the outcome of such a challenge can go either way.
The anti-defection law was designed to curb defections. Yet, in practice, most defections occur through coordinated movements that meet the numerical threshold under Paragraph 4. As long as the approach is to prioritize numerical strength over organizational consent, anti-defection law will facilitate defections. The recent split in AITMC is a reminder that the most significant loophole in the Tenth Schedule persists. The question today is not whether merger exception is being misused. It is whether a provision that routinely enables the very practice it was meant to curb continues to deserve a place in the Constitution.
Disclaimer: The opinions and views expressed in this article/column are those of the author(s) and do not necessarily reflect the views or positions of South Asian Herald.
