The anti-defection law was meant to end the era of the “Aaya Ram, Gaya Ram” politician. Four decades later, it has produced constitutional alchemists seeking ever newer ways to turn defection into legality.
The anti-defection law was meant to end the era of the “Aaya Ram, Gaya Ram” politician. Four decades later, it has produced constitutional alchemists seeking ever newer ways to turn defection into legality. The latest spectacle involving rebel Trinamool Congress MPs seeking refuge in an obscure political outfit is less about Bengal’s shifting loyalties than whether the spirit of the Tenth Schedule can survive those determined to circumvent it. The sequence is revealing.
The initial suggestion that two-thirds of a legislature party could simply function as a separate bloc quickly encountered a constitutional obstacle. The “split” defence no longer exists. Parliament abolished it through the 91st Constitutional Amendment after discovering that what had been intended to protect genuine ideological ruptures had become a licence for organised defections and horse-trading. Faced with that reality, the strategy evolved. A prohibited split was repackaged as a permissible merger. Paragraph 4 of the Tenth Schedule protects legislators from disqualification where an original political party merges with another political party and at least two-thirds of the members of its legislature party agree to that merger.
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The numerical threshold attracts attention because numbers are easy to grasp. The more important question is one of constitutional identity: who exactly is the political party? The Supreme Court’s 2023 Shiv Sena judgment offered an answer that should not be lightly ignored. It drew a clear distinction between the organisational political party and its legislature party ~ which, by extension, includes the parliamentary party ~ observing that the anti-defection framework becomes unworkable if the two are treated as interchangeable. The Court also noted that once the split provision had been deleted, legislators could not revive it through alternative constitutional routes.
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That reasoning cuts to the heart of the controversy. Legislators represent a political party; they are not the political party itself. If the party organisation continues to exist, retains its leadership and structure, and explicitly disowns any merger, can a group of MPs manufacture one by numerical strength alone? The implications extend far beyond one party or state. If two-thirds of legislators can redefine the party on whose ticket they were elected, the anti-defection law becomes an exercise in arithmetic rather than one of fidelity to electoral mandates.
Voters choose not merely individuals but symbols, programmes and organisational identities. Permitting those identities to be appropriated through legislative majorities would reintroduce, in subtler form, the very culture of defections Parliament sought to eliminate. The law is not entirely free from ambiguity. The Bombay High Court’s ruling in the Goa Congress case gave greater weight to the two-thirds legislative threshold, and that interpretation remains before the Supreme Court.
Yet constitutional exceptions should be construed narrowly, not converted into escape routes. The stronger post-Shiv Sena view is that the merger exemption requires more than legislative arithmetic; it requires the original political party itself to merge. Democracy survives not merely through counting heads in a legislature, but by respecting the mandate in whose name those heads were counted in the first place.
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