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Context

The ongoing political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.

About 10th Schedule

• In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
• But its enactment was catalyzed by the political instability after the general elections of 1967.
• This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
• The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
• The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

Provisions of the 10th Schedule

• Instances of floor crossing have long gone unchecked and unpunished.
• In part, this can be attributed to the exemption given to mergers between political parties which facilitate bulk defections.
• Disqualification provision: The second paragraph of the Tenth Schedule allows for disqualification of an elected member of a House if such member belonging to any political party has voluntarily given up membership of their party, or if they vote in the House against such party’s whip.
• Exceptions: Paragraph 4 creates an exception for mergers between political parties by introducing three crucial concepts — that of the “original political party”, the “legislature party”, and “deemed merger”.
• What is the legislature party?  It means the group consisting of all elected members of a House for the time being belonging to one political party.
• Original political party: An “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).
• Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level.

How Paragraph 4 of the 10th Schedule deals with mergers?

• Paragraph 4 is spread across two sub-paragraphs, a conjoint reading of which suggests that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger.
• It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.
• The second sub-paragraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
• However, in most cases there is no factual merger of original political parties at the national (or even regional) level.
• Creation of legal fiction: Paragraph 4 seems to be creating a “legal fiction” so as to indicate that a merger of two-third members of a legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
• In statutory interpretation, “deemed” has an established understanding.
• The word “deemed” may be used in a law to create a legal fiction, and give an artificial construction to a word or a phrase used in a statute.
• In other cases, it may be used to include what is obvious or what is uncertain.
• In either of these cases, the intention of the legislature in creating a deeming provision is paramount.

Merger exception and issues with it

• The merger exception was created to save instances of the principled coming together of political groups from disqualification under the anti-defection law, and to strike a compromise between the right of dissent and party discipline. 
• In the absence of mergers of original political parties, the deeming fiction could, presumably, be used as a means to allow mergers of legislature parties.
• Encouraging defection: Reading Paragraph 4 in this manner would empower legislature parties to solely merge with another party, and thus, practically ease defection.

What if sub-paragraphs are read conjunctively?

• For a valid merger then, an original political party has to first merge with another political party, and then two-thirds of the legislature party must support that merger.
• Given the politics of current times, stark differences in parties’ respective ideologies, and deep-seated historical rivalries, it is unimaginable how a merger between major national or regional parties would materialise.

Way forward

• Remove Paragraph 4: In a situation where either reading of Paragraph 4 in its current form yields undesirable results, its deletion from the Tenth Schedule is a possible way forward.
• The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 made similar recommendations.
• Revisiting by Supreme Court: Till that happens, an academic revisiting of the Tenth Schedule by the Supreme Court, so as to guide future use of the anti-defection law, is timely and should happen soon.

Conclusion

Neither of these two interpretations of Paragraph 4complements the ‘mischief’ that the Tenth Schedule was expected to remedy — that of curbing unprincipled defections. Amending it is the need of the hour.