A day after 20 rebel Trinamool Congress (TMC) Lok Sabha MPs announced their merger with the little-known Nationalist Citizens Party of India (NCPI) and met Lok Sabha Speaker Om Birla seeking a separate seating arrangement in the House, legal opinion is divided on whether the MPs’ move falls in the realm of defection and will consequently attract disqualification under the Tenth Schedule of the Constitution.Those in the rebel camp believe they will be able to stave off disqualification since more than two-thirds of the MPs (20 of 28) have merged with another party. They also cite a 2022 verdict of the Goa Bench of the Bombay High Court in the Goa defection case. The Court had upheld the Goa Assembly Speaker’s order dismissing two petitions seeking disqualification of 12 MLAs — 10 from the Congress and two from the Maharashtrawadi Gomantak Party (MGP) — who had switched over to the BJP in 2019.AdvertisementThe crossover was projected as a merger of the legislature parties of the Congress and the MGP as they constituted two-thirds of the respective strength of those two parties. The Congress then had 15 MLAs in the House.At the Centre of the debate then and now is Paragraph 4 of Tenth Schedule which says disqualification will not apply if the original political party merges with another party and at least two-thirds of the members of the legislature party agrees to such a merger.The clause, “disqualification on ground of defection not to apply in case of merger”, states, “A member of a House shall not be disqualified … where his original political party merges with another political party and he claims that he and any other members of his original political party … have become members of such other political party or, as the case may be, of a new political party formed by such merger; or have not accepted the merger and opted to function as a separate group…”AdvertisementIt adds that “merger of the original political party a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger”.In the Goa case, the High Court said, “Parliament in its own wisdom has incorporated a deeming fiction under sub-paragraph (2) of paragraph 4 of the Tenth Schedule to the Constitution, which protects a member of a House from being disqualified… provided at least two-thirds members of the legislature party agree to merge with another political party,” the court said. “… As long as Parliament has determined the threshold of morality of at least two-thirds members of the legislature party agreeing for merger, the courts have nothing else to go by, except the legislative wisdom of Parliament to determine such a threshold of political morality in that context.”Chakshu Roy, head of legislative and civic engagement at PRS Legislative Research said the Constitution specifies the requirement for MPs to merge and evade disqualification. “However, in the past both in Parliament and state legislatures, the presiding officers have approved the merger of two-third legislators of one party into another. When contested, the High Court of Bombay has allowed such mergers to take place. In the absence of the apex court deciding the issue, there is no judicial finality on the merger provisions of the anti-defection law,” he said.In favour of disqualificationThose who believe the TMC MPs will face disqualification argue that the Tenth Schedule contemplates a “twin test” for arriving at a conclusion regarding the merger of the original political party. In this case, “the legislature party has merged, not the TMC. Under Paragraph 4 of the Tenth Schedule, the merger has to be of the political party. And therefore, they are liable to be disqualified as MPs,” said Rajya Sabha MP and Senior Advocate Kapil Sibal.“Secondly, ours is a party-based Constitution. It is the symbol of the party that helps you become a MLA or MP. Now, if the legislative party merges, they don’t take the symbol of the party. So now they (the TMC MPs) will be shown as having been elected from the symbol of a party, which is a regional party and which I believe has not even been allotted a symbol. So, they will be represented as MPs with reference to the symbol of a party from whose symbol they did not get elected. It is per se illegal,” he said.Former Lok Sabha secretary-general P D T Achary concurred with Sibal, emphasising that the Tenth Schedule recognises the centrality of political parties. It is the political party that can merge with another party, not the legislature party.Achary said sub-paragraph (2) of Paragraph 4 means that if the political party wants to merge with another, two-thirds of its MPs in a House have to agree to the said merger. “The purpose of the law was to prevent disqualification of those MPs whose parties have merged,” he said, underlining that it was clear that the merger had to be of the party, not the legislature party. “All decisions of the Supreme Court on this have endorsed this,” he added.While the rebel camp cited the Bombay High Court verdict, Achary believes the 2023 Supreme Court verdict in the Shiv Sena split case (Subhash Desai vs Principal Secretary, Governor of Maharashtra) made it clear that a legislature party cannot act independently of the political party. The Supreme Court said in its judgment that it was the political party and not the legislature party that appoints the Whip and issues directions to vote in a particular manner.Past instancesThe immediate fate of the TMC rebel MPs lies in the hands of the Speaker. In April, seven of the 10 Rajya Sabha MPs of the AAP – constituting two-thirds of the party’s strength in the Upper House – crossed over to the BJP. They had called it a merger.Days later, the Rajya Sabha Secretariat updated the party-wise list of members in the House, counting the AAP members with the BJP, indicating that Chairman and C P Radhakrishnan has accepted the merger.you may likeIn 2019, four of the TDP’s six Rajya Sabha members joined the BJP arguing that two-thirds of a legislature party can shift loyalties without losing their membership. Their merger was also accepted by the then Chairman M Venkaiah Naidu.However, the presiding officer’s decision can be challenged before court.The Tenth Schedule, known as the anti-defection law, was added through an amendment in 1985 and further amended in 2003. Over the years, the law meant to discourage defections has on many occasions failed to do so. Paragraph 2 of the Tenth Schedule provides for disqualification on ground of defection if the member of a House voluntarily gives up membership of the political party or votes or abstains from voting in the House in a manner contrary to the party’s directions.