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The writer is a former secretary general of the Lok Sabha.

The 10th Schedule of the Constitution, commonly referred to as the anti-defection law, is facing the most serious challenge yet in its 34 years of existence. The challenge is not judicial, but political. Legislators show a tendency to ignore the law and defect to the parties in power. Earlier this month, 12 out of the 16 members of the Congress Legislature Party in Telangana “merged” with the TRS, the ruling party in Telangana. Close on the heels of this defection, four members of the Rajya Sabha, from the Telugu Desam Party “merged” with the BJP and became members of the legislature party of the BJP in the Rajya Sabha. Quite surprisingly, the media in general has approved of this act of defection as a valid exercise in accordance with the law — that if two-thirds of the legislators of a party merge with another party, it would be a legally valid merger. This is a wrong interpretation of the law.

The 10th Schedule was enacted to put an end to the scourge of defection. The political class viewed defection as such a serious menace to the stability of the democratic system that the anti-defection law was made a constitutional law. Constitutional authorities such as the Chairman of the Rajya Sabha and the Speaker of Lok Sabha, who act as tribunals in defection cases, have scrupulously followed the spirit of the law in deciding the cases under the 10th Schedule.

The spate of defections taking place now have brought back the focus to this law once again. Does any provision of this law actually allow any legislator to move out of his party and join another party without any legal hitch? This question has assumed great importance in the context of the Telangana Congress MLAs merging in the TRS and the TDP MPs of Rajya Sabha merging with the BJP. They seem to assume that having two-third of the total number of members of their respective parties means they can merge with the other parties, without incurring disqualification.

Para 2(1)(a) of the 7th Schedule disqualifies a legislator, however, if he voluntarily gives up the membership of his party. So any MLA or MP is liable to be disqualified if he leaves his party voluntarily. But Para 4 is in the nature of an exception. It exempts such legislators from disqualification upon fulfilling two conditions: One, his original political party has merged with the other party; two, two-thirds of the legislators of that party have agreed to such a merger. The Speaker can exempt them from disqualification only on the fulfilment of these two conditions. This makes it clear that any merger mentioned is between the original political party and the other party. But a mere merger between two parties is not enough for invoking the protection of Para 4.

After all, the entire 10th Schedule relates to the defection of legislators. Therefore, their role in the merger process is very crucial. Thus, this Para says, that for the purpose of exempting a defecting legislator, the merger shall be deemed to have taken place only if two-thirds of the legislators have agreed to such a merger. If the legislators have not agreed to the merger, there is no merger under Para 4. The lawmakers have used words very carefully. The words “two-thirds of the Members. have agreed to such merger”, used in Para 4(2), make it abundantly clear that the merger takes place between two parties and the requisite number of legislators of that party must agree to such merger. Thereafter, the speaker exempts those legislators from disqualification. It may be noted here that the legislators do not merge, they only agree to the merger done by their original political party. Thus, a merger between the political parties concerned has to take place first. Only then can the legislators “agree to such merger”.

In all the cases mentioned above, the legislators have acted on the assumption that all that is required to do is for them to “merge” with the other party and the merger of their original political party is not necessary.

This is a misreading of the law. The sooner they realise it, the better for them as well as for the democratic system.

The writer is a former secretary general of the Lok Sabha

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© 2019 The Indian Express Ltd. All Rights Reserved