Introduction
The Tenth Schedule defines legislature parties separately from political parties. The political party is the larger organisation that exists outside the legislature. The political party fields candidates for elections. Once these candidates are elected, the group of elected members of the legislature form that party’s legislature party (e.g. BJP Legislature Party, AAP Legislature Party). Before its deletion, paragraph 3 of the Tenth Schedule allowed one third of members of legislature party members to split from the other legislators. In Rajendra Singh Rana v Swami Prasad Maurya, a five-judge bench of the Supreme Court held that a split must first occur in the political party and then that split must be accepted by one-third of the legislature party.
However, for mergers, the law is less clear. The question of whether a valid merger requires a merger in the political party and then acceptance by two-third of the legislature party or whether two-thirds of the legislature party can unilaterally create a merger is still unclear. The Bombay High Court, in Girish Chodankar, held that paragraph 4 does not require a merger to occur in the political party. However, this piece will argue that paragraph 4 does require a merger in the larger political party and acceptance of the merger by two-thirds of the legislature party and therefore the decision in Girish Chodankar warrants reconsideration.
Questioning the decision in Girish Chodankar
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The Erroneous Reasoning
The text of paragraph 4 of the Tenth Schedule reads:
(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party…
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of 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.
The Bombay High Court held that paragraph 4(2) operates independently of paragraph 4(1). It held that the word “deemed” created a deeming fiction whereby a merger, if agreed to by two-third of the legislature party, will be deemed to have taken place even if there is no real merger of the political parties. The Court also read “if and only if” to mean that the only condition necessary to be fulfilled was the two-third support of the legislature party (paragraph 43).
By holding that the two sub-paragraphs operate disjunctively, the Court came to the conclusion that a “deemed” merger between political parties would be created when two-thirds of the legislature party even if there is no actual merger of political parties (paragraph 46).
A deeming provision is not always made for the purpose of creating a legal fiction, it can also be meant to include what is obvious or to make clear what is uncertain. Since 4(2) opens with “for the purposes of sub-paragraph (1)” it cannot be read independently of 4(1). Sub-paragraph (1) provides for non-disqualification of members if there is a merger of the political party. The Judgment fails to note that sub-paragraph (2) goes on to say “if and only if… have agreed to such merger.” The words “such merger” makes a reference to the merger referred to earlier, which is a merger of the original political parties, not the legislature party. Therefore, a merger must exist before the legislature party can agree to it.
The deeming provision in paragraph 4 is not making a legal fiction, it, instead, makes clear that though there has to be a merger of political parties, such a merger would only be “deemed” to have taken place for the purpose of non-disqualification of members of the legislature if two-third of the legislature party agrees to it. This would mean that there is a requirement of the merger originating from the political party, not the legislature party. The role of the legislature party is in accepting the merger so that the legislators do not face disqualification.
The Bombay High Court also erroneously accepted the claim that if there was factual merger of two national parties at the national level, such a merger would be frustrated if only two-thirds members of the legislature party of even one Legislature in the country would not agree with such a merger (paragraph 49). This is not the case; the Tenth Schedule applies to each legislature individually. Therefore, if the deeming provision is read to apply for sub-paragraphs (1) and (2) it would mean that if two-thirds members of a legislature party in any one legislature do not agree to such merger, it would not be deemed to have taken place for that specific legislature. Only in that legislature would the members not be considered to be a part of a newly merged party. Thus, the merger at the national level would not be frustrated.
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Interpreting Paragraph 4 of the Tenth Schedule
While interpreting statutes, especially ones with deeming provisions, it is important to look at the object of the legislature and the purpose of the provision. This is because it provides clarity as to why the deeming provision exists. The parliamentary debates on the Tenth Schedule do not provide much clarity on paragraph 4. A question was addressed to the Law Minister of whether mergers could unilaterally take place by the legislature party without any decision in the organizational machinery of the party. This was raised because in states with small legislative assemblies it would be easier for parties with only a few elected legislators to have 1 or 2 MLAs decide to unilaterally merge. This concern was not addressed by the Minister. Two MPs went further and said that mergers should only be allowed in political parties that shared similar ideologies and election manifestoes. This too was not addressed by the government.
In the absence of clarity from the parliamentary debates, the Court should examine what mischief the statute was intended to remedy and interpret the statute to advance the remedy and suppress the mischief. The Tenth Schedule was introduced to solve the issue of an elected member of the legislature jumping ship and acting against the political party that they were elected from. Paragraph 4 is in furtherance of the same ends, it exists to ensure that the elected representatives from a political party actually support a merger of that political party and to ensure non-disqualification in such a situation. It does not intend to give a free reign to two-thirds of a legislature party to unilaterally abandon their party and merge with another political party. This would be antithetical to the very idea of anti-defection.
In Subhash Desai v Principal Secretary, Governor of Maharashtra, the Supreme Court’s reason for its decision that the power to appoint a whip vests in the political party and not the legislature party was that allowing otherwise would produce an absurd outcome where legislators would be permitted to rely on the political party to secure their election by campaigning on its promises, policies, and reputation and then entirely disconnect themselves from that party, functioning as an autonomous group of legislators owing no allegiance to it whatsoever. The Court held that this is precisely the outcome the Tenth Schedule was created to prevent (paragraph 113). It is this same outcome that is allowed by the Bombay High Court’s interpretation of paragraph 4.
The Bombay High Court’s interpretation assumes that legislators operate as a decision-making authority independent from the political party they are elected from. By allowing a legislature party to unilaterally decide on mergers, the judgment treats the legislature party as a separate unit rather than a sub-unit of the political party for the purpose of mergers, thus allowing it to act not as an agent of the political party that fielded them but rather as a principal of their own. The following section argues that this view is not consistent with the view of representation that has developed in India and further that the political party must remain the decision maker with the legislature party as a sub-unit that carries out the legislative functions of the political party. .
The Scheme of Representation and Paragraph 4 of the Tenth Schedule
Do individual legislators represent the preferences of the voter or does the political party represent their preferences? Do elected legislators have decision making authority independent from the political party? Attempting to answer these questions will answer the question before us: Whether a legislature party has an independent existence from the political party such that it can make unilateral decisions for itself like merging with another party.
The chain of representation in most modern liberal democracies follows as:
Political parties are the medium through which the preferences of citizens become policies. The assumption is that an elected representative is merely a part of the political party and does not deviate from the political party. Legitimate government needs coherence in legislators from the same party. Decisions from party leaders should be able to be attributed to the party as a whole, including the members of the party in the legislature. This is where Anti Defection Laws come into play.
India follows the first past the post system of territorial representation. Under this system, citizens with a single vote choose representatives from defined constituencies. Citizens vote for candidates as opposed to directly voting for political parties. The reason the Constituent Assembly chose the first past the post system was the expectation that the candidates would be elected on the basis of their promises and they would keep those promises because they were accountable to the same electors in the next election. With the growth of political parties, the choice of candidate for a constituency and the promises made to the voters have both come to be controlled by political parties (via manifestos, etc.). Voters therefore look to and expect parties to turn their preferences into policies.
We have moved away from the view of representation that gave primacy to the representative over the political party. The Tenth Schedule itself, by ensuring that elected representatives vote with their party and follow the directions of the party signals that the political party is the locus of representation.
In Kihoto Hollohan the Supreme Court upheld the validity of the Tenth Schedule and accepted the view that a citizen may decide their representative at two levels: firstly, a candidate as a representative of that constituency to the legislature, and secondly, a political party to form the government at the state or national level (paragraph 20). In Rajendra Singh Rana, while rejecting the idea that a split could be created in the legislature party without first occurring in the political party, the Supreme Court rejected the idea that members of the legislature “wore two different hats: one as a member of the political party and another as a member of the legislature.”(paragraph 38). Similarly, in Ram Bilas Sharma v. The Speaker, Haryana Vidhan Sabha, the Punjab & Haryana High Court held that the legislature party is not a separate entity from the political party, it is only a wing within the political party. (paragraph 4)
Conclusion
The Bombay High Court, by allowing the legislature party to unilaterally decide to merge with another party, carries forth the notion that decisions in the legislature can be made independently of political parties. However, as demonstrated above, the basis and locus of representation is not the individual legislator or even a group of legislators but rather it is the political party. The legislature party should not be allowed to act unilaterally against the political party, especially in matters as significant as a merger in the legislature. An appeal to the decision in Girish Chodankar has been pending before the Supreme Court since 2022, allowing the Supreme Court to set the law right on Paragraph 4 of the Tenth Schedule and prevent “fictitious” mergers such as the one recently witnessed in Rajya Sabha with the merger of AAP MPs with the BJP.
Author bio: Ranvit is a second-year law student at National Law University, Delhi, with interest in constitutional law and public policy.
