A political party is trying to win back its defected MLAs in Rajasthan. This has raised a new question- “Does the anti-defection law apply here?”

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Q.“Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

What does “merger” mean a/c to Tenth Schedule?

• The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
• Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
• The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.

The ‘merger’ Politics

• The political party is arguing that a state unit of a national party cannot be merged without the party being merged at the national level.
• However, the Tenth Schedule identifies this dichotomy between state units and national units.
• As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House.
• In this case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.
• Paragraph 1 of the Tenth Schedule which defines terms specified in the context of the anti-defection law states this clearly.
• “Legislature Party” for the purposes of Paragraph 4 (which deals with mergers) means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.

Role of Whip

• Every legislative party identifies the party’s whip at the beginning of the Assembly’s term and conveys this to the Speaker.
• A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

On what grounds is the case-based?

• The contention is that the merger is illegal and unconstitutional because, for a national party, such merger has to take place at the national level.
• Supporting this argument, there are two decisions of the Supreme Court: the 2006 Jagjit Singh v State of Haryana, and the 2007 ruling in Rajendra Singh Rana and Ors vs Swami Prasad Maurya.
• In these cases, the SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.
• The key aspect is that these cases deal with splits where when one-third of the members of a legislative party split; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.

Row over one-third

• In 2003, through the 91st Constitutional Amendment, Paragraph 3 was deleted from the Tenth Schedule.
• The amendment was made as the one-third split rule was grossly misused by parties to engineer divisions and indulge in horse-trading.
• One-third was regarded as an easy target to achieve and the law now exempts defection only when it is at two-thirds (in a merger).

Are there any such precedents?

• In July 2019, 10 of the 15 one party’s MLAs in Goa joined the other taking the ruling party’s tally to 27 in the 40 member House.
• Since they formed two-thirds of the strength of the legislative party unit, they are exempt from disqualification.
• However, the Speaker’s decision not to disqualify them is under challenge before the Supreme Court.
• Similarly in Telangana in 2016, two years after the 12 out of 15 of MLAs joined the ruling party.
• The Speaker recognised the defection as a merger since more than two-thirds had moved.

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