Mass merger or defection? MPs’ BJP switch highlights constitutional issues

ON fri, septet Rajya Sabha MPs from the Aam Aadmi company united the Bharatiya Janata company and termed their move a “merger” within Section 4 of the Tenth Schedule of Constitution which prohibits such defections. This purported merger of two-thirds of the MPs, in the absence of a merger between the original political parties, raises a significant constitutional issue of subversion of the anti-defection laws. It is yet another instance in a long line of contested mergers within legislature parties, including the so called “mergers” of Telugu Desam Party MLAs with the Telangana Rashtra Samithi in Andhra Pradesh (2016), TDP Rajya Sabha MPs with BJP (2019), Bahujan Samaj Party MLAs with the Congress in Rajasthan (2019), Congress MLAs with the TRS  in Andhra Pradesh (2019) and Congress MLAs with the BJP in Goa (2022).The 10th schedule frowns on elected representatives changing party allegiance and crossing the floor after being elected on the mandate of a particular political party, because this amounts to a betrayal of voter trust, and undermines the democratic process, thereby endangering the foundations of representative democracy.But when two-thirds or more elected representatives of a party join another political party, can they claim protection from the anti-defection law by citing a merger of the Legislature Party?This will need to be examined within the legal framework of two laws, which together constitute a composite scheme governing political parties and Legislature Party (elected representatives of a political party in the House). The conduct of legislators (member of Legislature Party) vis-à-vis their political party is primarily regulated by the Tenth Schedule of the Constitution, which provides for disqualification for unprincipled and unethical political defections, whereas the constitution, recognition and electoral activities of such political parties are governed by the Symbols Order, 1968.At its inception, the Tenth Schedule contained two exceptions to disqualification, viz., split and merger. Since the deletion of the defence of split in 2004, merger remains the sole exception to disqualification. It provides that merger of original political party with another political party will be deemed to have taken place, if and only if not less than two-thirds of the members of the legislature party concerned have agreed to such merger. Properly construed, this provision indicates that a valid merger is premised on the merger of the original political party itself; the concurrence of not less than two-thirds of the members of the legislature party simply being a constitutional requirement to validate the underlying party merger of the original political party within the House.In the absence of such a merger of the original political party, the claim of a merger within the legislature party cannot, by itself, attract the constitutional protection from disqualification. The Supreme Court in Subhash Desai (2023) also held that a clear demarcation is made between political party and Legislature Party for the purpose of a merger under Section 4 of the Tenth Schedule, and the two cannot be conflated.However, in an earlier judgment of Girish Chodankar (2022), the Bombay High Court, without taking note of the constitutional and statutory scheme governing mergers, held that in view of the deeming fiction provided for under Section 4(2), the merger of the original political party is not a sine qua non for invoking the exception. This judgment, while considering Section 4 of the Tenth Schedule in isolation, failed to take note of the provisions of the Symbols Order, especially Section 16 thereof, which deals with merger (amalgamation/joining together) of political parties. Significantly, the Symbols Order does not conceptualize merger of legislature party, the consequence being that questions of recognition, merger, identity etc. Of parties can only be determined at the level of the political party, of which legislature wing is only one part. Section 16 of Symbols Order has been interpreted by the Supreme Court in a catena of judgments, such as in Samyukta Socialist Party (1967) and All Party Hill Leaders’ Conference (1977), which hold that the merger of a political party can be validated only if a majority of the members of the political party (and not only the members elected to the legislature) accept this merger. The Court has also held that the consequence of merger is that the political party or the political parties, as the case may be, cease to exist.If the interpretation of Bombay HC is accepted, it would mean that while a group of legislators is treated as having merged into another political party, the original political party continues to function outside the House as a separate entity. Thus, though the seven AAP MPs have “merged” with the BJP, the original political party continues to operate outside the House. Such interpretation is contrary to the letter and spirit of Section 4 of the Tenth Schedule, completely opposed to Symbols Order and decisions of Supreme Court and, in effect, is prompting wholesale defection, which was the mischief sought to be curbed by the deletion of the defence of split from the Tenth Schedule.Recognition of such mergers within legislature parties by the Speakers amounts to a fraud on the constitutional scheme of anti-defection. What are, in substance, splits within the legislature party, are being portrayed as mergers so as to project them as constitutionally valid acts. A genuine merger must be initiated at political party level and must result in the obliteration of the original political party; however, actions such as the present one create an anomalous situation where the original political party continues to exist outside the House.The interpretation of “merger” under Section 4 of the Tenth Schedule should be harmonised with Section 16 of the Symbols Order, and be confined only to cases where there is a genuine merger of the original political parties. Such an interpretation would prevent unholy, unconstitutional realignments of elected representatives for personal gain from being shielded under the guise of a merger of political parties.(The author is a senior advocate in the Supreme Court. Views expressed are personal)