The Supreme Court on Monday issued notice to the Union government on a writ petition filed by Rajya Sabha MP and Senior Advocate Kapil Sibal challenging the interpretation of the Tenth Schedule to the Constitution, which, according to him, allowed legislators to avoid disqualification under the anti-defection law by taking the route of political party mergers.
The Bench of Justice PS Narasimha and Justice Alok Aradhe observed that the Tenth Schedule, enacted to regulate defections among legislators, had given rise to several practical and constitutional concerns over the years. The Court noted that while it had upheld the constitutional validity of the Tenth Schedule in the past, there were enormous issues in its functioning, adding that Parliament itself had ultimately enacted the law.
At the outset, the Bench questioned why the petition had been filed directly under Article 32 of the Constitution. In response, Sibal submitted that the issue had far-reaching consequences for India’s democratic and constitutional framework and directly affected the integrity of electoral mandates.
Referring to a similar matter already pending before the Supreme Court, including the Goa anti-defection dispute, he argued that the present interpretation of the merger provisions enabled elected representatives to alter the outcome of an election by changing political allegiances after the polls. He contended that such defections could convert a legislative majority into a minority, or vice versa, thereby undermining the will of the electorate.
The Court observed that issues relating to the functioning of the Tenth Schedule were ordinarily matters to be addressed by legislators on the floor of the House or by political parties. It remarked that the Schedule was intended to regulate the relationship between legislators and that many of the difficulties had arisen from its implementation by Members of Parliament themselves.
Responding to the Court’s observations, Sibal argued that lawmakers, like courts, could also make mistakes. He further submitted that those in power would have little incentive to correct the existing legal position because the present interpretation worked to their advantage.
In his petition, Sibal has challenged the judicial interpretation of the merger provisions under the Tenth Schedule, contending that it permits splinter groups within a legislative party to evade disqualification by engineering mergers with another political party, thereby defeating the object of the anti-defection law. He has sought reconsideration of the existing legal position governing mergers under Paragraph 4 of the Tenth Schedule.
Sibal also informed the Court that similar constitutional issues are already pending before the Supreme Court. These include a petition filed by the Shiv Sena (Uddhav Balasaheb Thackeray) challenging the Lok Sabha Speaker’s decision recognising the merger of certain party MPs with the Shinde faction.
Another petition filed by the Congress challenges the Bombay High Court’s Goa Bench ruling, which held that a legislative party could validly merge with another political party without the approval of the original political party. The petition also refers to recent instances involving legislators from the Aam Aadmi Party, Trinamool Congress and Shiv Sena (UBT), who allegedly joined the BJP and other political parties through similar merger mechanisms.
After hearing the submissions, the Supreme Court issued notice to the Union government and sought its response on the constitutional challenge to the interpretation of the anti-defection law.
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