Senior Advocate Kapil Sibal has filed a writ petition before the Supreme Court in his personal capacity, challenging the constitutional interpretation of the Tenth Schedule that permits elected legislators to avoid disqualification under the anti-defection law by claiming the benefit of a political party merger.
The matter was mentioned before the Bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice V Mohana, which agreed to list the matter.
Sibal submitted that the petition raised an important constitutional issue concerning whether the composition of Parliament and State Legislatures can be altered through the manner in which political defections are taking place. He argued that the existing interpretation of Paragraph 4 of the Tenth Schedule, which deals with mergers, has weakened the anti-defection framework and risks rendering the constitutional safeguard ineffective if such practices continue.
The petition challenged the interpretation of the merger provision under the Tenth Schedule, contending that it enabled splinter groups within legislative parties to circumvent disqualification by engineering mergers with other political parties without adhering to the constitutional objective of preserving political stability and electoral mandates.
According to the plea, the present legal position allowed legislators to evade the consequences of defection through the merger route, thereby frustrating the purpose of the anti-defection law.
Sibal also informed the Court that similar issues were already pending before the Supreme Court. He referred to the petition filed by the Shiv Sena (Uddhav Balasaheb Thackeray) faction challenging the Lok Sabha Speaker’s decision recognising the merger of certain party MPs with the Eknath Shinde-led Shiv Sena, which is listed before a Bench headed by Justice P.S. Narasimha.
The petition assumes significance in light of recent instances in which several legislators belonging to the Aam Aadmi Party, the Trinamool Congress and the Shiv Sena (UBT) joined the Bharatiya Janata Party and other political parties by invoking the merger provisions under the Tenth Schedule.
The plea also comes against the backdrop of another pending matter filed by the Indian National Congress challenging the judgment of the Goa Bench of the Bombay High Court, which held that the legislative wing of a political party could validly merge with another political party even without the approval of the original political party. That decision has raised substantial questions regarding the scope of Paragraph 4 of the Tenth Schedule, the distinction between a legislative party and a political party, and the constitutional limits of the merger exception under the anti-defection law.
Through the writ petition, Sibal has sought judicial reconsideration of the prevailing interpretation of the merger provisions, contending that a purposive interpretation is necessary to prevent abuse of the constitutional exception and to preserve the integrity of the Tenth Schedule, which was enacted to curb political defections, maintain legislative stability and uphold the democratic mandate of the electorate.
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