A GANG OF 2/3RD MLAs SIMPLICITER NOT “BE-ALL AND END-ALL” TO WARD OFF THE SANCTION OF ANTI-DEFECTION LAW

Not all (doesn't mean NOT AT ALL) is bad with the anti-defection law. The whipping boy the para 4 of the Tenth Schedule of the Constitution enabling the merger of a political party, in fact, is highly democratic. It envisages a collaborative and participatory working between the political party concerned and its legislature party consisting of all members of the given House for the time being belonging to that political party in that House. The law tends to strike a fine balance between interests of political party and the aspirations of the Legislators (denoting the will of the people) comprising the legislature party concerned. The contents and intent of the said law lend emphatic credence to the inference that any decision for such merger can only be taken by the original political party in accordance with the rules thereto as embodied in the constitution of that political party, and to take it further to any logical conclusion must find favour with not less than two-thirds of the elected members of the legislature party concerned (ie MLAs or MPs as may be the case). Hence, the contention being articulated from certain quarters that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter is untenable.

- TENTH SCHEDULE to Indian Constitution

4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under subparagraph (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.

NOTE:
Only direct ruling on above clause 4 of the 10th Schedule to the Constitution is of Punjab & Haryana High Court by MR. JUSTICE K. KANNAN RE Kuldeep Bishnoi Versus Speaker, Haryana Vidhan Sabha, Chandigarh and others (CWP No.2900 of 2013), Date of Decision.09.10.2014 and falls well short of any elucidation over the matter.