Arghya Sengupta & Swapnil Tripathi Column

Arghya Sengupta and Swapnil Tripathi Officers at Vidhi Center for Legal Policy

In the recent past, 6 Lok Sabha-Rajya Sabha MPs from Shiv Sena, 20 from Trinamool and 7 from AAP have joined other parties. In all three cases the parties concerned had opposed these mergers. Despite this, these are considered valid under the anti-defection law. What is the technical problem behind this? The anti-defection law was created to deal with a real problem.

MPs and MLAs frequently changed parties and joined other parties. Haryana MLA Gaya Lal had changed parties thrice in a single day. The lure of ministerial posts or other benefits encouraged MLAs to switch parties, thereby destabilizing elected governments. During 1967-68 itself, out of 210 MLAs who changed parties in various assemblies, 116 were made ministers.

To stop this, the Tenth Schedule of the Constitution was added in 1985. Under this, if the public representative leaves the party on whose ticket he was elected, his membership will be terminated. Its objective was clear – to maintain political stability and protect the mandate of the voters.

However, this law also changed the nature of the relationship between political parties and elected representatives. Before the Tenth Schedule, MLAs and MPs had relatively more freedom. They could vote in the House based on their conscience, public interest or the needs of their constituency.

But the anti-defection law changed the balance of power in favor of political parties. If any MP or MLA violates the party whip or leaves the party membership, he could face disqualification. That is, within this law, party discipline was given priority over individual freedom.

But the law also accepted some exceptions, the most important of which was the merger of political parties. According to this provision, if a political party merges with another party and gets the support of two-thirds of the MPs or MLAs of that party in the House, then such elected representatives will be protected from disqualification. The idea of ​​the law was that both the political party and its elected representatives would have a role in the process of merger.

However, over time the courts have developed interpretations of this provision that appear to be at odds with the broader objective of the anti-defection law. The courts started considering the condition of two-thirds majority as sufficient. As a result, if a sufficient number of MPs or MLAs from a party decide to simultaneously defect to another party, it is treated as a merger for the purposes of the Tenth Schedule, even if the original party continues to exist and oppose it.

For example, the Aam Aadmi Party exists as an independent party, but seven of its ten Rajya Sabha MPs are now with the BJP. Similarly, Trinamool is active even today and has opposed the merger of its MPs. Yet according to the current legal interpretation, if the required number is met, the party’s objection will no longer be conclusive. This creates a strange paradox.

The political consequences of such mergers are serious. They can change the balance of majority in the House, influence voting on important bills and even jeopardize the stability of governments. This problem is more serious for smaller states and regional parties, where the number of MLAs is limited. In small assemblies it is easy to achieve the two-thirds figure.

Political parties were considered important in democracy. That is why if any MP or MLA went against his party, he could lose his membership. But in the question of party merger, the will of the political party has been made almost irrelevant.

(These are the authors’ own views)

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