NEW DELHI: Renowned legal experts have highlighted the Tenth Schedule's inability to stop political defections when they acquire the scale of a 'merger'. They stated that the joining of the BJP by seven AAP Rajya Sabha MPs, led by Raghav Chadha, would not violate the anti-defection law. This law permits two-thirds of a legislature party to break away and merge with another party.
Legal Interpretation of the Tenth Schedule
Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul, and Maninder Singh explained that Section 4(2) of the Tenth Schedule provides that the penalty of disqualification may not arise if two-thirds of the strength of a legislature party in a House approves breaking away from the party on whose ticket they were elected and merges with another party.
Senior advocate A M Singhvi, who has both opposed and supported such political decisions in the Supreme Court, said: 'The Tenth Schedule says that (i) one political party must merge with another, and (ii) two-thirds members of the legislature party must agree to the said merger. The Supreme Court held that the legislature party and political party cannot be conflated as they are separate entities. Accordingly, mere merger of legislature parties is not sufficient.'
AAP had 10 MPs in the Rajya Sabha, and seven would constitute two-thirds of its legislature party in the House.
Challenges in Enforcement
However, Singhvi noted that the arbiter of such disputes is the presiding officer or Speaker of a House, who owes their position to the ruling dispensation. This makes it difficult to get such MPs or MLAs disqualified under the anti-defection law. 'I have said so many times over the last decade that the Tenth Schedule is a sterile part of the Constitution, which should be repealed and substituted by two lines: Any MP/MLA who defects from the party from which they got elected to the House shall cease to be a member of the House and must seek re-election,' Singhvi added.
Kaul remarked: 'If two-thirds of members of a legislature party approve that a merger has happened of the party, then the merger is deemed to have happened and, therefore, it is a valid defence by them to avoid disqualification in the House.'
He noted that in the Shiv Sena case, the Supreme Court accepted that Section 4(2) of the Tenth Schedule was a valid defence in disqualification proceedings.
Clarification on Legislature Party
Rohatgi and Singh clarified that a legislature party is relatable to the House concerned. 'If two-thirds of the total members of a party in the Rajya Sabha decide to merge with another party, it shall be considered a valid merger and will not invite disqualification under the anti-defection law.'
In April 2003, an amendment to the Tenth Schedule barred the earlier prevalent defections arising from splits in the party.
