Context

In its verdict in the Goa MLAs case, Bombay High Court has misread the 10th schedule of the Constitution, which was meant to prevent horse trading among legislators.

Understanding the Paragraph (4) of Tenth Schedule

• Paragraph (4) is an exception to the Tenth Schedule’s main provisions.
• It operates only when the defectors’ original political party has merged with the party to which they have defected and two-thirds of the members of the legislature belonging to that party have agreed to the merger.
• Under this provision, the merger of the original political party has to take place first, followed by two-thirds of the MLAs agreeing to that merger.
• The basic premise of the February 25 judgment is that sub-paragraph (2) is distinct from the parent paragraph, and a factual merger of the original political party is not necessary.
• This does not square with the content, context and thrust of paragraph (4), which contemplates the factual merger of the original political party — in this case, the INC.
• The court’s view — the merger of the 10 MLAs of the Congress Legislative Party with the BJP should be regarded as the Congress itself merging with the BJP — goes against the letter and spirit of the Tenth Schedule, paragraph (4) in particular.

Process for the merger: 2 conditions need to be satisfied

• 1] Merger alone is not enough: The opening words of sub-paragraph (2) — “for the purposes of sub-paragraph (1) of this paragraph” — clearly mean that to exempt a member from disqualification on account of defection, and for considering this member’s claim that he has become a member of the party with which the merger has taken place, a merger of two political parties alone is not enough.
• 2] Not less than 2/3 members should also agree: Not less than two-thirds of the members should also agree to such a merger.
• The lawmakers made it tough for potential defectors to defect.
•  The words “such merger” make it clear beyond any shadow of doubt that the merger of the original political party has to take place before two-thirds of the members agree to such a merger.
• The members of the legislature cannot agree among themselves to merge as the court has said, but they can agree to a merger after it takes place.

Conclusion

The anti-defection law was designed to eliminate political defection. However, the judgment of the Bombay HC seems to assume that paragraph (4) of the 10th schedule is meant to facilitate defection. This judgment is likely to open the flood gates to defection. The Supreme Court must intervene quickly.

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