By Sanjay Raman Sinha
The last few months have witnessed an extraordinary churn in Indian politics, marked by dramatic realignments of political loyalties that have once again brought the Constitution’s anti-defection framework under intense judicial scrutiny.
In Maharashtra, six of the nine Lok Sabha MPs belonging to the Shiv Sena (Uddhav Balasaheb Thackeray) crossed over to the Eknath Shinde-led Shiv Sena after claiming protection under the merger provisions of the Tenth Schedule. In West Bengal, 20 of the 28 Trinamool Congress MPs announced their alignment with the Nationalist Citizens Party of India, a political formation that supports the BJP-led National Democratic Alliance.
Both developments have now landed before the Supreme Court, raising fundamental questions about the constitutional validity of such political migrations.
At the heart of the litigation lies a deceptively simple, but constitutionally profound question: Can numerical strength alone create a valid political merger?
On July 22, a Supreme Court bench of Justices PS Narasimha and Alok Aradhe issued notices to Lok Sabha Speaker Om Birla, the Lok Sabha Secretariat, and the six Maharashtra MPs who had recently been recognised as having merged with the Eknath Shinde faction.
The bench’s intervention signals that the apex court intends to revisit one of the most contested provisions of the anti-defection law—the merger exception contained in Paragraph 4 of the Tenth Schedule.
The constitutional issue is straightforward, yet far-reaching. Can the Speaker recognise a merger merely because two-thirds of a legislature party have crossed over? Or must the Speaker first determine whether the original political party, as an organisational entity outside the legislature, has itself formally merged with another political party?
During the hearing, the bench observed that there were “enormous issues” surrounding the anti-defection law, while also acknowledging that it remains a law enacted by Parliament. The remarks suggest that although judicial restraint may govern the Court’s approach, constitutional scrutiny of the merger provision is inevitable.
The issue has assumed even greater significance because an almost identical dispute involving the rebel Trinamool Congress MPs is also pending before the Lok Sabha Speaker. Like the Maharashtra controversy, that case revolves around the interpretation of the merger clause and the scope of the Speaker’s constitutional authority.
The anti-defection law was introduced through the 52nd Constitutional Amendment in 1985 with the objective of curbing the rampant political defections that had destabilised governments during the preceding decades. The Tenth Schedule provides for the disqualification of legislators who voluntarily give up the membership of their political party or vote against the party whip without prior permission.
Originally, Paragraph 3 protected legislators if at least one-third of a legislature party split away together. However, widespread abuse of that provision transformed defections into an accepted political strategy. Parliament, therefore, abolished the split exception through the 91st Constitutional Amendment in 2003. What survived was Paragraph 4—the merger provision—which deliberately imposed a much stricter constitutional standard.
That provision rests upon what constitutional lawyers describe as the “twin test.” Both requirements must be satisfied simultaneously.
The first requirement is that the original political party—the organisational body functioning outside Parliament or the state legislature—must itself merge with another political party.
The second requirement is that at least two-thirds of the members of the legislature party must agree to that merger and become members of the merged entity or a newly constituted political party.
This distinction has become the central fault line in contemporary defection disputes. While legislators may easily satisfy the numerical requirement by assembling a two-thirds majority within the legislature party, they cannot manufacture the merger of the parent political organisation simply through a vote inside the House.
The Supreme Court itself recognised this distinction in the Subhash Desai (2023) judgment, where it unequivocally held that the political party and its legislature wing are constitutionally distinct entities. A valid merger must, therefore, originate from the political organisation itself and cannot be retrospectively created by legislators seeking immunity from disqualification.
Equally significant is the constitutional position of the Speaker. The Speaker’s authority under the Tenth Schedule was upheld by the Supreme Court in Kihoto Hollohan (1992), which characterised the Speaker as a constitutional tribunal while simultaneously holding that the Speaker’s decisions remain subject to judicial review on grounds such as mala fides, perversity, constitutional infirmity, or violation of natural justice.
Yet, virtually every major anti-defection controversy over the past three decades has exposed the same institutional dilemma.
The Constitution expects the Speaker to function as a politically neutral constitutional authority. In reality, however, the Speaker remains an elected representative belonging to a political party and often owes political allegiance to the very coalition whose survival may depend upon the outcome of a defection dispute.
This inherent conflict of interest has repeatedly cast doubt on the impartiality of decisions involving defections, mergers and disqualifications. When constitutional adjudication turns solely on legislative arithmetic, rather than a rigorous examination of whether the constitutional requirements for a genuine merger have actually been fulfilled, the danger of political bias becomes difficult to ignore.
The pending cases, therefore, present the Supreme Court with an opportunity that extends well beyond the fortunes of rival political parties.
The Court may finally clarify whether the merger exception has become an unintended escape route from the anti-defection law, and whether Speakers should be required to apply far more exacting constitutional standards before recognising political mergers. The debate may even revive long-standing calls for transferring adjudication of defection disputes from the Speaker to an independent constitutional tribunal.
The outcome will not merely determine the fate of a handful of MPs. It could redefine the constitutional balance between party discipline, democratic accountability and the integrity of India’s parliamentary system.
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