On January 30, 1985, when the Constitution Amendment Bill providing for a law against defection by legislators was being discussed in the Lok Sabha, George Gilbert Swell, then an MP from Shillong, Meghalaya, raised questions about the proposed legislation that have proved especially prescient in the backdrop of the recent spate of defections.

Swell, who belonged to the Congress, supported the Bill brought by the Rajiv Gandhi government. He expressed concern about the merger provision in the Bill, which he interpreted as protecting legislators from disqualification if two-thirds of the members of a legislature party broke away and merged with another party. He said it could prove disastrous for small parties with five or six members in the Assembly or one or two members in Parliament.

“Suppose it so happens that the two Members of this House belonging to a particular party decide to merge. The merger would be effective and legal,” he said.

Swell also raised questions about the fate of the parent party of such defecting MPs or MLAs—an early pointer to the ambiguity over where a party stood at the organisational level when a merger was effected by its legislators.

He asked what would happen if the organisational machinery of the party did not merge. “And that party, as a result of the number of votes that it got in the elections, is a recognised party, with its own symbol allotted by the Election Commission. Here you have a case, where the elected members of that party have left the party, and merged with some other party, but the organisation of the party remains. What happens? Will that party incur de-recognition from the Election Commission?”

The questions raised by Swell during the 1985 debate are proving particularly relevant as a debate rages over the Anti-Defection Law—and especially the merger provision—in the wake of a recent wave of defections followed by mergers. Seven out of ten Rajya Sabha MPs of the AAP merged with the ruling BJP in April. As many as 20 out of 28 Lok Sabha MPs of the Trinamool Congress merged with a little-known party called the Nationalist Citizens Party of India. Six out of nine MPs belonging to the Shiv Sena (Uddhav Balasaheb Thackeray) in the Lok Sabha joined the Eknath Shinde-led Shiv Sena.

The MPs who defected claim they are on firm legal ground because they fulfil the norm of at least two-thirds of the members of a legislature party quitting their original party and merging with another. The provision they invoke also includes a clause that speaks of the parent party merging with the other party, and at the centre of the debate is whether the provisions pertaining to the political party and the legislature party can be read separately—as has happened in the recent defections and mergers.

The merger provision

The Anti-Defection Law, or the Tenth Schedule of the Constitution, came into being through the Constitution (Fifty-second Amendment) Act, 1985. The law was enacted to curb the growing “Aya Ram, Gaya Ram” culture—the increasing trend of floor-crossing by MPs and MLAs. In the decades that followed, it has been criticised for failing to stop defections and, in fact, for encouraging mass migration of legislators. At the centre of the criticism is the merger provision.

Paragraph 4 of the Tenth Schedule deals with the exception provided to legislators from disqualification in the event of a merger. It is titled “Disqualification on ground of defection not to apply in case of merger”. Sub-paragraph (1) states that a Member of a House shall not be disqualified for crossing the floor where his original party merges with another party and he claims that he and any other members of his original party have become members of the other party or a new party formed after the merger, or if they have not accepted the merger and opted to function as a separate group. Sub-paragraph (2) states that for the purposes of sub-paragraph (1), the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party have agreed to such a merger.

Experts believe that Paragraph 4 has a convoluted and confusing phrasing—especially the way the two sub-paragraphs have been drafted and sequenced—leaving it open to more than one interpretation. A moot question is whether the two sub-paragraphs must be read conjunctively, because the defecting MPs and MLAs have taken shelter in the interpretation that sub-paragraph (2) can be read independently of sub-paragraph (1), making their merger with another party not dependent on the parent party also merging.

“Paragraph 4 is spread across two sub-paragraphs, the curious drafting of which leaves significant leeway for interpretation. The first sub-paragraph prescribes that a merger takes place when one original political party merges with another political party. The second sub-paragraph then suggests that the merger of the original political party shall be deemed to have taken place only if two-thirds of the members of the legislature party agree to such merger. Read conjunctively, these two sub-paragraphs would mean that a valid merger could occur only when an original party merges with another, and at least two-thirds members of the legislature party agree,” said Ritwika Sharma, assistant professor at the Jindal Global Law School.

According to Sharma, a conjunctive reading of the two sub-paragraphs clearly places a higher threshold on how valid mergers can take place, involving the twin requirements of mergers between the original parties on the one hand, and the legislature parties on the other.

The Goa precedent

Several instances of mass floor-crossing by legislators have taken recourse in a disjunctive interpretation of the merger provision. While presiding officers have accepted such mergers as legally valid, going by the argument that sub-paragraph (2) can be read as a stand-alone provision, these defections followed by mergers have also been defended by citing a judgment of the Bombay High Court with regard to the merger of 10 Congress MLAs with the ruling BJP in Goa in 2019.

The 10 Congress MLAs had claimed they satisfied the two-thirds norm since the total strength of the Congress legislature party was 15. Disqualification petitions filed against them were dismissed by the Assembly Speaker, who declared that they did not invite disqualification as there was a valid merger between the two parties. The Speaker’s decision was challenged before the Goa Bench of the Bombay High Court. The High Court gave its verdict in the Girish Chodankar v. Speaker, Goa Legislative Assembly case on February 24, 2022, upholding the Speaker’s order.

The Bombay High Court concluded that “sub-paragraph (2) of Paragraph 4 of the said Schedule operates in a field distinct and independent of sub-paragraph (1) of Paragraph 4”. The judgment further stated: “This distinct and independent field contemplates a situation where there is no merger of the original political party and yet, it has to be deemed that such merger has taken place, if and only if, not less than two-thirds of the members of the legislature party agree to such a merger.”

It is, however, contended that the Bombay High Court’s order—challenged in the Supreme Court and currently pending before it—is not the final word or a settled legal position on whether the merger provision can be read disjunctively.

“With this interpretation, that sub-paragraph (2) can be read in a standalone manner, a political party can continue to say that it does not agree with the merger of its legislators, as has happened in the case of the TMC and the Shiv Sena (UBT), but the merger is considered valid by the presiding officer. So the political party has been left out completely from the process to decide whether it is a valid merger or not,” said Swapnil Tripathi, Lead at Charkha (Centre for Constitutional Law) at the Vidhi Centre for Legal Policy.

“This interpretation is also anomalous because it runs counter to the basic rationale behind the enactment of the law, which was to strengthen party discipline. Earlier, a legislator could dissent from the party and yet continue to be a member of the House. Under the anti-defection law, the party is at the centre of a member’s association with the House. A disjunctive reading of Paragraph 4 leaves the party redundant in mergers undertaken by a majority of the legislature party,” said Tripathi.

A conjunctive case

According to the “Anatomy of India’s Anti-Defection Law”, a report brought out by the Vidhi Centre for Legal Policy in November 2023, decisions given by some Speakers have supported a conjunctive reading of Paragraphs 4(1) and 4(2). The report cited the case of two Haryana Assembly MLAs—Charan Dass Shorewalla and Vinod Kumar Mariya—against whom petitions were filed in 1997-98 for voluntarily giving up the membership of their original party, the Samata Party.

The question before the Speaker was whether the Tenth Schedule contemplates a situation where the original party merges with another party, but its legislature party remains a separate entity uninfluenced by the merger. The Speaker concluded: “When the Tenth Schedule speaks of split and merger contemplated by paras 3 and 4, it does not speak of split or merger in the Legislature Party but it speaks of split and merger in the original political party.”

This, states the Vidhi report, hints “towards a conjunctive reading of Paragraphs 4(1) and 4(2) on the premise that a split or merger has to necessarily occur in original political parties, and not just in legislature parties. The legislature party, in and of itself, cannot be the only site of accepting or rejecting a split or merger.”

The courts have in cases dealing with the now deleted split exception in the Tenth Schedule adjudicated that the legislature party cannot be viewed as a separate entity that can act independently of the original political party in the context of the anti-defection law. This includes judgments by the Punjab and Haryana High Court and the Supreme Court.

Sharma pointed towards the Supreme Court’s clarification on Paragraph 4 in its order in the Subhash Desai v. Principal Secretary, Governor of Maharashtra case of 2023, according to which, “... A clear demarcation is made between political party and legislature party for the purpose of a merger under Para 4, which stipulates that two-thirds of the members of the legislature party must have agreed to a merger of the original political party before such a merger can be deemed to have taken place. To read the term ‘political party’ as ‘legislature party’ would be contrary to the plain language of the Tenth Schedule.”

“This is the closest that the Supreme Court has come to clarifying exactly how the two sub-paragraphs of Paragraph 4 are to be read,” Sharma said, noting that while this ruling is timely, it is not fully explained.

Character, ethics, and law

There is a view that the merger provision clearly places the political party at the centre in the scheme of the Tenth Schedule, and that a deliberate misreading of the law has been undertaken by parties and Speakers to allow mass defections.

“There is nothing wrong with the law. Those who are switching sides have a character deficit. Those who are deciding on the defections and mergers suffer from a deficit in ethics. Law cannot change character and ethics,” said Bishwajit Bhattacharyya, former Additional Solicitor General of India.

“Character and ethics can cleave through the mightiest of obstacles. The entire system is running on the might of power, without character and ethics. What can a poor law do? As they say, the law is an ass,” Bhattacharyya said.

With presiding officers increasingly opting for a disjunctive reading of the merger provision, the role of the Speaker in ensuring the implementation of the anti-defection law is being questioned.

“The authority to decide disqualification lies with the Speaker or the Chairman, who often belongs to a political party, raising concerns of bias. Speakers typically belong to the ruling party. Simultaneously, recent trends increasingly indicate movement of defecting MPs from other parties towards the political party in power at the Union Government,” Sharma said.

“A disjunctive reading of the merger provision makes it easier for Speakers to validate defections under Paragraph 4, justifying their choice of such a reading. This could also be linked to the pressing need for the ruling party to increase its numbers in Parliament, especially given how crucial constitutional amendments are required to be passed in the near future,” she said.

Reforming the adjudicator

The Law Commission of India recommended in its 2015 report that the President should be the adjudicating authority on disqualification petitions in the case of MPs and the Governor in the case of MLAs, and that they shall act on the advice of the Election Commission of India (ECI). The National Commission to Review the Working of the Constitution had in its report in 2002 recommended that the ECI should be the deciding authority.

“One cannot rule out an element of bias in the manner in which the presiding officer deals with disqualification petitions or decides on mergers. We need an independent body, which could be a tribunal. This will also ensure that cases are decided faster because Speakers have been known to keep disqualification petitions pending for a long duration, and at times, the life of the House comes to an end but the petitions have not been taken up. Delay by the courts in deciding such cases has also resulted in the matter being of only academic interest in the end,” Tripathi said.

With the implementation of the anti-defection law leaving much to be desired and a growing sense that it has failed to curb defections—and may have in fact aided mass defections—suggestions on the way forward have come from various commissions and the Supreme Court itself, looking at a wide range of issues such as the grounds for disqualification, the impact on the legislator, and the adjudicating authority.

Sharma believes Paragraph 4 must go. “Political parties have gamed the anti-defection law despite judicial clarifications about interpreting Paragraph 4. At this point, the abuse of the merger provision is so rampant and unabashed that the only workable reform proposal is for Paragraph 4 to be abolished,” she said.

Tripathi, however, said the problem lies in the manner in which the merger provision has been interpreted rather than in the law itself, and that it needs to be clearly established that the correct way to interpret Paragraph 4 is to read the two sub-paragraphs in conjunction. “I don’t think doing away with the provision would help because it was included in the law for a very valid purpose. The political party must be included in any decision on a merger. The leadership of the original party must be involved,” he said.

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