When Defection Disguises Itself as a Merger
Imagine voting for a candidate from Party A, only to wake up a few months later and discover that your elected representative has switched to Party B. When you ask how this is legal, you are told it was not a defection, but a constitutional ‘merger.’ This exact controversy has reignited a fierce legal debate across India.
Senior Advocate Kapil Sibal has questioned the Supreme Court of India over its delay in settling a vital constitutional question: can lawmakers claim protection under the anti-defection law simply because two-thirds of them walked away together, even when their parent political party never merged? Speaking at an event on ‘Horse Trade and Democracy’ organized by the All India Lawyers Union in Kochi, Sibal warned that leaving this loophole open strikes at the very root of representative democracy.
What The Law Says: Paragraph 4 of the Tenth Schedule
The anti-defection law was added to the Constitution of India in 1985 through the 52nd Constitutional Amendment, creating the Tenth Schedule. Its primary aim was to curb political opportunism and stop lawmakers from hopping parties for power or money.
Under normal circumstances, an elected Member of Parliament (MP) or Member of Legislative Assembly (MLA) loses their seat if they voluntarily give up membership of their party or vote against party directions. However, Paragraph 4 of the Tenth Schedule provides an exception. Disqualification does not apply in cases of a ‘merger.’
The law creates a two-step framework for this exception:
- Party Merger: The original political party decides to merge with another political party.
- Legislative Approval: At least two-thirds of the elected members of that legislative party agree to the merger.
The constitutional debate centers on how these two conditions are read. Must both happen together, or can legislators simply declare a merger among themselves without their parent political organization ever agreeing to merge?
The Bombay High Court Ruling That Opened the Doors
The controversy gained significant momentum following a 2022 decision by the Goa Bench of the Bombay High Court. In that case, 10 out of 15 Congress MLAs in Goa joined the ruling Bharatiya Janata Party (BJP). The High Court held that the merger exception under Paragraph 4 applied because two-thirds of the legislative party made the move, even though the original political party had not merged.
This interpretation separated the ‘legislative party’ (the elected MLAs or MPs inside the assembly) from the ‘original political party’ (the registered organization outside). A Special Leave Petition challenging the 2022 judgment was later closed as infructuous because the assembly’s tenure ended. Similar situations followed, including eight out of eleven Congress MLAs in Goa moving to the BJP after the 2022 elections, an action also upheld by the High Court in 2025 and currently challenged before the Supreme Court.
Sibal noted that this precedent was relied upon in subsequent moves, including six Shiv Sena (UBT) MPs joining the Eknath Shinde-led Shiv Sena, which was accepted as a merger by the Speaker, as well as seven AAP Rajya Sabha MPs joining the BJP while the two parties remained fierce political rivals.
‘Punishing the Lonely Defector, Rewarding the Organised One’
Sibal strongly criticized this legal interpretation, arguing that treating a collective walkout as a valid merger defeats the entire purpose of the anti-defection framework.
In his address, Sibal observed that under this reading, the Tenth Schedule ends up punishing the lonely defector while rewarding organized defections. When an individual lawmaker changes sides, they are disqualified; but when two-thirds coordinate their move, the law protects them. According to Sibal, this allows the exception to swallow the entire rule.
Sibal emphasized that the Tenth Schedule was meant to accommodate genuine political unions, not wholesale horse-trading. He argued that Paragraph 4 must be interpreted strictly—or amended by Parliament—to clarify that a merger must involve the parent political party itself, rather than an engineered group walkout by elected representatives.
The Problem with the Speaker’s Role
Beyond the legal wording of Paragraph 4, the controversy also exposes structural flaws in how disqualification petitions are handled. Under the Tenth Schedule, the Speaker of the House is the designated authority to decide whether a lawmaker has defected.
However, the Speaker is almost always an active member of the ruling party. Sibal pointed out that this structural reality raises questions about impartiality. Because the Speaker remains politically aligned, disqualification petitions involving ruling-party interests often face lengthy delays or controversial rulings.
To solve this institutional conflict, legal experts and law reform panels have long demanded that disqualification disputes be removed from the Speaker’s office and placed before an independent tribunal with legally binding timelines. Sibal echoed this demand, stating that inducements such as money, ministerial posts, or the dropping of investigations must be viewed as corruption of the voters’ mandate rather than ordinary political negotiation.
Why This Matters For You
For an ordinary citizen, elections are the ultimate exercise of constitutional power. You vote for a candidate based on their party’s ideology, manifesto, and promises. When lawmakers switch sides mid-term and maintain their seats through legal technicalities, that popular mandate is altered without voter consent.
Sibal also warned that unchecked defections do not merely destabilize state governments; they can reshape parliamentary majorities in the Lok Sabha. If a ruling coalition reaches a two-thirds ‘special majority’ through induced realignments, it gains the power to amend the Constitution fundamentally, potentially impacting the basic structure and secular foundations of the Republic.
What Happens Next?
Sibal has himself filed a writ petition before the Supreme Court challenging the interpretation that allows legislative defections to masquerade as mergers. A bench comprising Justices P.S. Narasimha and Alok Aradhe issued notice in the matter, observing that there are significant issues surrounding the Tenth Schedule that require examination.
The ball is now in the apex court’s court. Until the Supreme Court issues an authoritative ruling on whether an original political party must merge before its legislators can claim immunity, the Tenth Schedule will continue to face intense legal and public scrutiny.
Story reported by Supreme Court – High Court – Legal Breaking News | Live Law India. This article is BareLaw’s independent explanation and analysis.
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