In light of the recent verdict of the Bombay High Court’s Goa bench to uphold the Goa Legislative Assembly Speaker’s decision to dismiss pleas seeking the disqualification of 12 Congress MLAs who had switched to the BJP,NIKHIL PARIKSHITHexamines the lacuna in the Constitution’s Tenth Schedule, which was brought in to arrest defections.
ON February 24, the Goa Bench of the Bombay High Court delivered a judgement on the concept of ‘deemed merger’ of a political party under paragraph 4 of the Tenth Schedule to the Constitution.
The Goa Bench was hearing a challenge against the decision dated April 20, 2021 of the Speaker of the Goa Legislative Assembly whereby the Speaker had dismissed the disqualification petition filed by the Goa Pradesh Congress Committee [GPCC] against ten Indian National Congress Members of Legislative Assembly [MLAs], who had en masse switched allegiance to the Bharatiya Janta Party [BJP] on July 10, 2019. (For a primer on the politics in Goa, see here)
Relying upon the deeming fiction created by paragraph 4(2) of the Tenth Schedule, the high court held that since factually, the ten Congress MLAs comprised of two-thirds of all Congress members in the Assembly, there was a “deemed merger” between the two parties, when these Congress MLAs switched allegiance to the BJP. Consequently, the bench concluded that these 10 MLAs were not liable to be disqualified under paragraph 2 of the Tenth Schedule. In doing so, the high court gave legitimacy to the action of the Speaker in allotting seats to these 10 MLAs along with BJP members in the house.
The judgement of the Goa Bench is based on a literal interpretation (as opposed to a purposive or wider interpretation) of the provisions of the Tenth Schedule. A perusal of the decision would show the absurdities that envelope the Tenth Schedule, and how a literal reading of the Tenth Schedule (in particular paragraph 4) legitimises the culture of floor crossingthat pervades Indian politics.
In the landmark five judge Constitution bench decision of the Supreme Court in Kihoto Hollohan vs. Zachillhu & Ors. (1992), the raison d’être behind the Tenth Schedule was explained. As per the Supreme Court, the main purpose underlying the Tenth Schedule was to curb the menace of defection (caused on account of lure of office or other similar considerations) which was causing immense mischief in our body politic and endangered the foundations of our democracy. The remedy proposed by the Tenth Schedule was to disqualify the Member of either House of Parliament or of the State Legislature, from continuing as a Member of the House, on account of defection.
Under sub-paragraph (2) of paragraph 4, it is for the “members of the Legislature party” (and not the political party as a unit) to decide whether there should be or should not be a merger of their political party with “another political party”.
Paragraph 2 of the Tenth Schedule lays down situations wherein a member of a house belonging to any political incurs a disqualification from being a Member of a House. Sub-paragraph (1) of paragraph 2 makes it clear that the conduct which attracts disqualification is subject to paragraphs 4 and 5 of the Tenth Schedule.
Paragraph 4 was the subject matter of discussion before the Goa Bench.
Sub-paragraph (1) of paragraph 4 exempts an MLA/Member of Parliament [MP] from disqualification in case the “original political party” to which he or she belongs, ‘merges’ with “another political party”, and if such merger has been accepted by the member and any other members of the original political party. In such a scenario, the MLA/MP in question who has crossed over will be protected from disqualification under paragraph 2 of the Tenth Schedule and would treated as a member of the political party to which he or she has switched to.
Crucially, for the purposes of sub-paragraph (1) of paragraph 4, the‘merger’ of the original political party is deemed to have taken place, “if and only if”, two-thirds members of the “Legislature party” concerned have agreed to such merger. The expression “legislature party” (in contradistinction to “political party”) assumes legal significance in the context of a merger. A “legislature party” and “political party” are treated as two distinct entities for the purposes of the Tenth Schedule and in particular under paragraph 4(2). Even though there may be no merger of a political party with another political party at the national level, a merger can take place, if two-thirds members of the legislature party within the assembly have agreed to a merger with another legislature party in the Legislative assembly.
A full bench judgement of the Punjab and Haryana High Court in the Baljit Singh Bhullar case (1997) had explained the interconnected working of paragraph 2 and sub-paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule. It was held that sub-paragraph (2) creates a fiction in law that though there is no merger as such in the original political party either at the national level or at the state level, such a merger is deemed to have taken place if two-thirds members of the “Legislature party of that political party” agree that there is a merger.
Thus, under sub-paragraph (2) of paragraph 4, it is for the “members of the Legislature party” (and not the political party as a unit) to decide whether there should be or should not be a merger of their political party with “another political party”. Conversely, it was explained that there may be a merger of two political parties at the national level, but at the state level if two-thirds of the members of the Legislature party of the political party do not agree for such a merger, then it cannot be taken as a merger as there is a requirement that two-thirds of the members of the Legislative party must agree to such merger.
In Baljit Singh Bhullar, the MLA in question was the lone member belonging to the United Communist Party of India [UCPI]in the legislative assembly, who switched sides to the Congress and claimed a merger between the two parties under sub-paragraph (2) of paragraph 4. The high court held that by virtue of the deeming fiction contained in paragraph 4(2), the lone member of the UCPI in the House was saved from being disqualified under the Tenth Schedule as he constituted two-thirds of UCPI in the assembly for the purposes of paragraph 4(2).
The principle of deemed merger under sub-paragraph (2) of paragraph 4 is agnostic to the prevailing political reality since by legal fiction, it enables a merger of two national parties, who are not only antagonistic to each other but also have completely disparate ideologies. To the electorate, this would seem an absurdity.
Notably, the Supreme Court, in the Shrimanth Balasheb Patil case (2019) inter alia dealt with the disqualification of a sole elected member belonging to the Karnataka Pragnyavantha Janatha Party [KPJP] in the Karnataka Legislative Assembly. Unlike in Baljit Singh Bhullar, the MLA in question claimed that the KPJP had not merged with the Congress, and consequently the whip issued by the Congress was not binding on him. The Court noted that, admittedly, the said MLA had, in a letter addressed to the Speaker, claimed that he had agreed to merge his party with the INC. Therefore, applying sub-paragraph (2) of paragraph 4, the Supreme Court upheld the decision of the Speaker to treat the MLA as a member of the Congress since there was a deemed merger between the KPJP and the Congress.
The Bombay High Court heavily relied upon the principles laid down in these decisions and concluded that the 10 MLAs in question did not incur any disqualification by virtue of the deeming fiction created under sub-paragraph (2) of paragraph 4.
The case for deleting paragraph 4 of the Tenth Schedule
What stands out from Baljit Singh Bhullar and Shrimanth Balasaheb Patil is that even a lone member of a political party in the legislature can constitute two-thirds for the purposes of sub-paragraph (2) of paragraph 4 and escape disqualification by crossing over to a larger political party. Such an exemption from disqualification can enable unethical crossovers from small political parties to larger political parties.
As is evident from the facts of the Goa case, the crossover by 10 Congress MLAs (Congress won 17 out of the 40 seats in the 2017 assembly election) was sufficient to contrive two-thirds for the purposes of a deemed merger with the BJP by virtue of sub-paragraph (2) of paragraph 4 of the Tenth Schedule. Hence, the principle of deemed merger under sub-paragraph (2) of paragraph 4 is agnostic to the prevailing political reality since by legal fiction, it enables a merger of two national parties, who are not only antagonistic to each other but also have completely disparate ideologies. To the electorate, this would seem an absurdity.
Paragraph 4 of the Tenth Schedule must also be examined in the context of paragraph 3 of the Tenth Schedule (deleted by the Constitution (Ninety First Amendment) Act, 2003, with effect from January 1, 2004). The deleted paragraph 3 protected a Member of a House from disqualification where such a member and any other members of the legislature party constituted a group which had arisen as a result of the split of the original political party, and such group consisted of not less than one-third members of such legislature party. Unlike paragraph 4, there was no deeming fiction regarding the split of the original political party. For a split to occur, there had to be: (i) a split in the original political party, and (ii) at least one-third members of the legislature would have to form a faction. Thus, the split referred to in paragraph 3 relates to a split in the original party. What happens in the Legislature party subsequently is only an outcome of the split outside the Legislature, but such a split will be recognized by the Speaker if such groups splitting away from the original party consists of not less than one-third members of the Legislature party. (See Baljit Singh Bhullar)
The split referred to in paragraph 3 relates to a split in the original party. What happens in the Legislature party subsequently is only an outcome of the split outside the Legislature, but such a split will be recognized by the Speaker if such groups splitting away from the original party consists of not less than one-third members of the Legislature party.
Paragraph 3 was deleted from the Tenth Schedule by virtue of the 91st Constitutional Amendment as it had come under “severe criticism on account of its destabilising effect on government”, as per the Statement of Objects and Reasons of the Amendment Act. Earlier, the Law Commission of India, in its 170th Report on the Reform of the Electoral Laws (May, 1999) had not only recommended deletion of paragraph 3, but had also recommended deletion of paragraph 4 since it felt that the said paragraph “is likely to lead to several complications and unnecessary disputes.” The manner in which the Goa case played out shows that these observations of the Law Commission were quite prescient.
In its present avatar, paragraph 4 of the Tenth Schedule legitimises unethical party changes by MLAs/MPs and consequently undermines the will of the people, reflected in the votes they have cast in the election process.
(Nikhil Parikshith is an Advocate-on-Record at the Supreme Court of India. The views expressed are personal.)