Split, Merger and Defection Under the Tenth Schedule
After the 2024 Assembly election, Party A wins 68 seats, Party B 40, and 12 independents. One year later, 22 MLAs of Party A form a separate group and merge with Party B. Simultaneously, 3 of the 12 independents join Party B. The Speaker recognises the merger of the 22 and disqualifies 9 other Party A MLAs who voted against a government bill despite a three-line whip. The 9 argue that the whip was not valid because the party had already split; the 3 independents argue that joining a party after election is not defection. Party A now has 37 MLAs in the House. The Speaker's decision is challenged. The court must apply the Tenth Schedule and decide whether the Speaker's findings can be reviewed.
1. Distinguish a split from a merger under the Tenth Schedule after the 91st Amendment. What fraction of a legislature party must agree for a valid merger?
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The Tenth Schedule originally protected both splits and mergers. A split was protected if one-third of the members of a legislature party formed a separate group. The 91st Amendment, 2003, deleted the split exception with effect from 2004. Since then, forming a separate group is not by itself a defence to disqualification.
The only surviving protection is merger under paragraph 4. A merger is valid if at least two-thirds of the members of the legislature party agree to merge with another party. The merger must be of the original legislature party, and the members must agree to merge with another party. The two-thirds figure is calculated on the total strength of that legislature party, not on the number who actually attend a meeting. A group smaller than two-thirds cannot claim the merger exception, and its members may be treated as having voluntarily given up membership of their original party.
2. Apply the Tenth Schedule to the 22 Party A MLAs and to the 3 independents.
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Party A has 68 MLAs. Two-thirds of 68 is approximately 45.3, so at least 46 MLAs would need to agree to a merger. Only 22 MLAs formed the group and merged with Party B. That is less than one-third of the House and well below two-thirds of the legislature party. The merger exception therefore does not apply. The 22 cannot rely on the old split defence because it was deleted. Their conduct in merging with another party can be treated as voluntarily giving up membership of Party A, which attracts disqualification under paragraph 2(1)(a).
The 3 independents are in a different position. Under paragraph 2(2), an independent member who joins a political party after election is disqualified. The fact that they were elected as independents and later joined Party B is precisely the situation the provision covers. Their argument that joining a party is not defection fails because the Tenth Schedule treats it as a deemed defection. Nominated members have a limited six-month window, but these members were elected independents, not nominated members.
3. The 9 MLAs voted against a three-line whip after the party had split. Can the Speaker disqualify them, and can the Court review the Speaker's decision?
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The 9 MLAs can be disqualified if the whip was validly issued by the recognised party and they voted contrary to it. Their defence that the party had already split is legally irrelevant after the 91st Amendment, because split is no longer an exception. The fact that 22 MLAs left does not dissolve the original party or invalidate its whip. The Speaker must, however, decide whether the whip was issued by the competent authority and whether the members actually voted against it; a valid whip cannot be inferred from a mere political dispute.
The Speaker's decision is subject to judicial review. In Kihoto Hollohan, the Supreme Court held that the Speaker acts as a tribunal while deciding disqualification and that the decision is not immune from review. The Court does not ordinarily reappraise evidence or substitute its own finding on facts, but it can intervene if the Speaker acted without jurisdiction, violated natural justice, or reached a perverse finding. The Speaker must not act as an agent of the ruling party, and the pendency of a disqualification petition cannot be used indefinitely to manipulate floor strength.