Merger of political parties under 10th schedule

The Rajasthan High Court has issued notices to the speaker and secretary of the state legislative assembly and six MLAs, who contested elections on BSP tickets and then defected to the Congress.

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What’s the issue?

The BSP won six seats in Rajasthan but all its MLAs joined the Congress in September last year.

But, now at the national level, BSP is arguing that a state unit of a national party cannot be merged without the party being merged at the national level.

Besides, BSP national secretary has also issued a whip to 6 MLAs telling them to vote against the Congress in case there is a floor test.

On what grounds is BSP’s case based?

BSP’s 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 Supreme Court judgments:

  1. 2006 ruling in Jagjit Singh v State of Haryana:

In this case, the Court upheld the Speaker’s decisions disqualifying 4 MLAs from single- member parties who had joined the congress.

  1. 2007 ruling in Rajendra Singh Rana And Ors vs Swami Prasad Maurya:

37 MLAs — one-third of the BSP strength — “split” from the party after its government fell, to support SP. The SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.

But, why these judgments cannot be relevant today?

The key aspect is that these cases deal with splits where when one-third of the members of a legislative party splits; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.

  • However, 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).

Firstly, is “merger” allowed under the constitution?

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 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.

Can a state unit of a national party be merged without the party being merged at the national level?

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 Rajasthan’s case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.

What about the whip?

The whip issued by BSP national general secretary to the six MLAs would have no impact because such a direction has to necessarily be issued for voting on the floor of the House.

  • A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

Insta Concepts:

Anti-defection law lists situations for disqualification on the ground of defection:

  1. If an MP or an MLA “has voluntarily given up his membership of such political party” [clause 2(1)(a)], or
  2. If he/she votes or abstains from voting in the house contrary to any direction issued by his party, that is if he violates the party whip in the house [clause 2(1)(b)].
  3. If an independent candidate joins a political party after the election.
  4. If a nominated member joins a party six months after he becomes a member of the legislature.

Sources: Indian Express.

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