Maharashtra Political Crisis : Can Eknath Shinde's Rebel Group Escape From Disqualification Without Merger With Another Party?

Soon after Eknath Shinde's rebellion put the fate of the Maha Vikas Aghadi government in Maharashtra in uncertainty, the Tenth Schedule of the Constitution of India, which deals with disqualification of legislators for defection, came in focus.

"37" became a magic number, being the 2/3rd of the strength of Shiv Sena in the Maharashtra assembly(55). There is a general assumption is that if the Shinde's rebel group can muster the support of at least 2/3rd of Shiv Sena MLAs, they can escape disqualification under the anti-defection law. However, this assumption has no basis in law, as the tenth schedule no longer recognizes "split" within a party as an exception. The only exception to disqualification is merger with another party, that too with the support of at least 2/3rd MLAs, as per Paragraph 4 of the 10th schedule.

PDT Acharya, the former Secretary General of the Lok Sabha, explained this in a recent interview with Scroll.in :

"A lot of wrong information about the anti-defection law is circulating in the media. Let me clarify it. They can escape the anti-defection law [which would disqualify them] only if they merge with the Bharatiya Janata Party. For a merger there are two conditions:

1. The original party, the Shiv Sena, merges with the BJP.

2. Two-thirds of the MLAs agree to the merger. These 37 members cannot function as a group. They have to merge with the BJP. They do not know it".

"Under Tenth Schedule, only if 2/3 of a political party merge in another political party, disqualification is not attracted. Merely claiming support of 2/3 without merger will not save Eknath Shinde camp from disqualification Maharashtra crisis", said Supreme Court lawyer Senior Advocate Devadutt Kamat.

What does Paragraph 4 of Tenth Schedule say?

"Disqualification on ground of defection not to apply in case of merger"- this is the heading of paragraph 4 of the tenth schedule.

It reads as follows :

Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under sub- paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separate group,

and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

(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.

Let us breakdown the provision into simpler terms :

The first condition to escape from disqualification is that the original party should merge with another political party. The merger will be deemed valid only if at least 2/3rd members of the legislative party have agreed to it.

In such a scenario, the members who have merged in the other political party, or have formed a new political party by merger with another party will not get disqualified. Also, the remaining group of the original party (less than 1/3rd), who have not accepted the merger and have opted to remain as a separate group, are also not liable for disqualification(this is the impact of sub-clause(b) of clause (1) of Para 4).

The exception for split was omitted in 2003

The tenth schedule, in its original form, had recognized split of at least 1/3rd members within a political party as an exception to disqualification . Paragraph 3 of the tenth schedule provided the exception for splits.

However, in 2003, the exception for split was omitted through the 91st amendment to the Constitution. This was following a recommendation made by the Law Commission of India in its 170th report submitted in 1999. The Law Commission had in fact recommended that the exceptions given for both splits and mergers should be done away with by omitting paragraphs 3 and 4.

The Commission's report stated :

"The experience of this country with the Tenth Schedule since its introduction has not been happy. It has led to innumerable abuses and undesirable practices. While the idea of disqualification on the basis of defection was a right one, the provision relating to `split' has been abused beyond recall. It was accordingly suggested by us that paragraphs 3 and 4 should go altogether with the result that paragraph 2 alone remains (along with the exemptions in paragraph 5). The underlying idea was that a person elected on the ticket of a political party should remain with it during the life of the House or leave the House". 

However, the Parliament only omitted Paragraph 3 (relating to splits) and retained the exception for merger.

What amounts to voluntary giving up of membership?

As per paragraph 2 of the tenth schedule, a member will be disqualified on the ground of defection if  :

1. he has voluntarily given up his membership of the political party or
2. he has voted or abstained from voting in violation of whip issued by the party.

The Supreme Court has given a wider connotation to the phrase "voluntarily given up his membership" and has held that it is not synonymous with giving a resignation letter(Ravi S. Naik Vs. Union of India & Ors. 1994 SCC (11) 641).

"A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs", the Court held in Ravi S Naik.

In Rajendra Singh Rana vs Swami Parasad Maurya(2007), a Constitution Bench of the Supreme Court held that the very giving of a letter by the members to the Governor requesting him to call the leader of the opposition party to form a Government by itself would amount to their voluntarily giving up the membership of their original political party within the meaning of paragraph 2 of the Tenth Schedule. The conduct of members outside the house can also be taken into account to decide whether they have given up the membership of the party.

In the ongoing Maharashtra crisis, with the rebel group not announcing a merger with another party so far, they do not have absolute shield from 10th schedule. With reports of Shiv Sena submitting a petition before the Deputy Speaker seeking disqualification of 12 rebel MLAs including Eknath Shinde, the issue might revolve around whether the conduct of rebels could be inferred as voluntary giving up of membership of the original party so as to attract Paragraph 2(1)(a) of the Tenth Schedule.

Also Read : Maharashtra Political Crisis : Supreme Court's Call For Strengthening Anti-Defection Law Becomes Relevant Again