Why rebel TMC MPs in Lok Sabha are liable to be disqualified

The rebel TMC MPs argue that their 'merger' with the NCPI is constitutionally valid because they constitute at least two-thirds of the party's strength in the Lok Sabha. They point to earlier precedents. When seven Rajya Sabha MPs of the Aam Aadmi Party, led by Raghav Chadha, crossed over to the BJP earlier this year, Rajya Sabha Chairman C.P. Radhakrishnan allowed them to sit with BJP members, effectively recognising the merger. Similarly, in 2021, then Rajya Sabha chairman M. Venkaiah Naidu recognised the merger of six TDP MPs with the BJP.

However, the Tenth Schedule of the Constitution prohibits elected MPs and MLAs from defecting from the political party on whose ticket they were elected. Paragraph 2(1)(a) of the Tenth Schedule provides that a member belonging to any political party shall be disqualified if he or she voluntarily gives up membership of that party. The Explanation to Paragraph 2 further states that a legislator is deemed to belong to the political party that set him or her up as a candidate for election.

Paragraph 4 of the Tenth Schedule lays down a twin test for a valid merger. First, there must be a merger of the original political party with another party. Second, at least two-thirds of its legislators must agree to such a merger. In essence, the merger must originate from the original political party itself; a group of legislators cannot invoke it to escape anti-defection proceedings.

This position was upheld by the Supreme Court in its 2023 Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra. The Court held that the “original political party” and the “legislature party” are distinct entities under the Tenth Schedule. Paragraph 1(b) defines a “legislature party” as a group of members belonging to a particular political party in the House, while Paragraph 1(c) defines an “original political party” as the party to which such members belong outside the legislature.

Despite the Supreme Court’s 2023 ruling, a Bombay High Court on 16 January 2025 approved the shift of Goa Congress legislators to the BJP in 2022 as a valid ‘merger’. The rebel MPs from the Trinamool Congress are citing this ruling of the Bombay High Court as validation. The Supreme Court is however currently examining a petition filed by Goa Congress leader Girish Chodankar challenging the decision. The petition argues that “mergers of State legislature party in Opposition led by the Leader of Opposition are not only a ‘Constitutional sin’ but also amount to a direct attack on the democratic set-up of an Assembly”.

Senior Advocate Kapil Sibal believes the rebel TMC MPs have invited disqualification. Individually or as a group, the MPs cannot decide to merge the party with another party. The 28 or 20 Lok Sabha MPs do not constitute the Trinamool Congress Party, he points out. The ‘merger’ provision is for parties and not individual MPs or a group of them, he argues. Critics question what the rebels can possibly ‘merge’? They themselves are the creatures of the party which gave them the symbol to contest elections. They can neither lay claim to the party nor the party symbol, structure or funds. What then are they merging?

“It is the symbol of the party that helps you become a MLA or MP. Now, if the legislative party merges, they don’t take the symbol of the parent or original party they belonged to. So, they will be represented as MPs with reference to the symbol of a party from whose symbol they did not contest the election or get elected. It is per se illegal,” he explains.

Former Lok Sabha secretary-general P.D.T. Achary also concurs with Sibal, emphasising that the Tenth Schedule recognises the centrality of political parties. It is the political party that can merge with another party, not the legislature party. Achary said sub-paragraph (2) of Paragraph 4 means that if the political party wants to merge with another, two-thirds of its MPs in a House have to agree to the said merger.

While the rebel camp cited the Bombay High Court verdict, Achary believes the 2023 Supreme Court verdict in the Shiv Sena split case (Subhash Desai vs principal secretary, governor of Maharashtra) made it clear that a legislature party cannot act independently of the political party. The Supreme Court said in its judgment that it was the political party and not the legislature party that appoints the Whip and issues directions to vote in a particular manner.