CAA’s Articulate – Anti-defection law: A case for merger


Context:

  • The Bahujan Samaj Party(BSP) has approached the Supreme Court of India to win back its 6 MLAs, who have joined the ruling party in Rajasthan.

More on the news:

  • The BSP won six seats in Rajasthan but all its MLAs joined the Congress (ruling party).
  • Politically, the BSP has taken a stand not to support the government in Rajasthan.
  • If the six MLAs were to be disqualified, the effective strength of the House and the ruling party’s majority will get reduced.
  • However, the Speaker has rejected the disqualification plea.

Source: 5thvoice


Law on merger:

  • The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
  • According to the Tenth Schedule, when two-thirds of the members agree to “merge” the party, they would be exempt from disqualification.
  • The controversy: The BSP is arguing that a state unit of a national party cannot be merged without the party being merged at the national level.
  • 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.
  • The role of whip: The whip would have no impact in this case because such a direction has to necessarily be issued for voting on the floor of the House.
    • Also, 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.
  • The “merger” referred to in Paragraph 4(2) of the Tenth Schedule is often criticized as a legal fiction, as members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.

Similar cases:

  • In Goa Legislative Assembly: In 2019, 10 of the 15 Congress MLAs in Goa joined the BJP 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.
  • In the Rajya Sabha: Vice President issued orders to merge the TDP with the ruling BJP in Rajya Sabha after four of its five MPs defected.
    • Although TDP still has a presence in the Upper House through its lone MP, the party was deemed to have merged only for the purpose of not attracting penalty under the Tenth Schedule for the four MPs who defected.