The Bahujan Samaj Party’s (BSP) recent issuance of a whip, calling for its six Member of Legislative Assemblies (MLAs) to vote against the Indian National Congress (INC) government in Rajasthan Assembly has brought to light differing interpretations of party mergers under the anti-defection law. The twist lies in the fact that these six BSP MLAs had declared their merger with the INC in September 2019.
BSP’s Arguments Against the Merger
BSP is contending that a state unit of a national party cannot be merged without incorporating the party at the national level. The party has branded the joining of the six MLAs as unlawful and unconstitutional. To substantiate its arguments, BSP has highlighted two Supreme Court decisions: The Jagjit Singh v State of Haryana 2006 case, where four legislators from single-member parties in the Haryana Assembly declared their parties had split and had joined the Congress, and the Rajendra Singh Rana And Ors vs Swami Prasad Maurya 2007 case, involving a “split” of 37 MLAs from the BSP during the 2002 Uttar Pradesh elections.
Significance of the 91st Constitutional Amendment of 2003
Notably, both cases cited by the BSP preceded the 91st Constitutional Amendment of 2003, which abolished the Paragraph 3 of the Tenth Schedule. This amendment was introduced as the one-third split rule was greatly exploited by parties to create divisions and engage in political horse-trading. The legislation now only excuses defection when it’s at two-thirds, in a merger.
Constitutional Experts’ Views on Mergers
P.D.T. Achary notes that, per the Tenth Schedule (anti-defection law), a merger can only occur between two original political parties, assuming two conditions are met: A merger must take place between two original political parties, and two-thirds of the members of the House from that party must approve the merger. Achary also emphasizes that the anti-defection law’s main objective is to safeguard the party system, not merely to curb defection.
Subhash C. Kashyap concurs with Achary, adding that a party which fields candidates for election is the one required to merge under the Tenth Schedule, and that two-thirds of the MLAs from that party should accept the merger.
However, Faizan Mustafa challenges the notion of a merger between two original parties, arguing that this implies the legislative party cannot merge with any other entity in any state. Mustafa believes the merger needs to be viewed “locally,” not on a national scale.
Previous Similar Cases
In June 2019, the Vice President issued orders to merge Telugu Desam Party (TDP) with the ruling BJP in the Rajya Sabha after four out of five TDP MPs defected. This interesting case saw the TDP arguing, much like the BSP now, that a “merger” can only occur at an organisational level of the party, not within the House. Another similar case emerged in 2016 when 12 out of 15 TDP MLAs joined the ruling TRS – a move recognised as a merger by the Speaker since over two-thirds had shifted.
