Explained: How BSP is banking on SC rulings to hold back former MLAs

However, the Speaker has rejected the disqualification plea.

What does the “merger” of BSP with Congress mean?

The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers. Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.

The “merger” referred to in Paragraph 4(2) is seen as legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.

How does the central BSP leadership view the merger in Rajasthan?

The BSP is arguing that a state unit of a national party cannot be merged without the party being merged at the national level.

However, the Tenth Schedule identifies this dichotomy between state units and national units. As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House. In this case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.

Paragraph 1 of the Tenth Schedule which defines terms specified in the context of the anti-defection law states this clearly.

“Legislature Party” for the purposes of Paragraph 4 (which deals with mergers) “means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.”

Additionally, the whip issued by BSP national general secretary Satish Mishra to the six MLAs would have no impact because such a direction has to necessarily be issued for voting on the floor of the House. Every legislative party identifies the party’s whip at the beginning of the Assembly’s term and conveys this to the Speaker. A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

Also read | Why Ashok Gehlot — or Sachin Pilot or BJP — is not asking for a floor test in Rajasthan

On what grounds is BSP’s case based?

The BSP’s contention is that the merger is illegal and unconstitutional because for a national party, such merger has to take place at the national level. Supporting this argument, Satish Mishra has cited two decisions of the Supreme Court: a three-judge 2006 bench ruling in Jagjit Singh v State of Haryana, and a five-judge bench 2007 ruling in Rajendra Singh Rana And Ors vs Swami Prasad Maurya.

The first decision relates to four legislators from single-member parties in the Haryana Assembly, who said their parties had split and later joined the Congress. The court upheld the Speaker’s decisions disqualifying them.

The second decision, involving the BSP itself and the Samajwadi Party, also deals with “split”. In the 2002 Uttar Pradesh elections, 37 MLAs — one-third of the BSP strength — “split” from the party after its government fell, to support SP. The SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.

The key aspect is that these cases deal with splits where when one-third of the members of a legislative party splits; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.

In 2003, through the 91st Constitutional Amendment, Paragraph 3 was deleted from the Tenth Schedule. The amendment was made as the one-third split rule was grossly misused by parties to engineer divisions and indulge in horse-trading. One-third was regarded as an easy target to achieve and the law now exempts defection only when it is at two-thirds (in a merger).

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Are there any such precedents?

In July 2019, 10 of the 15 Congress MLAs in Goa joined the BJP taking the ruling party’s tally to 27 in the 40 member House. Since they formed two-thirds of the strength of the legislative party unit, they are exempt from disqualification. However, the Speaker’s decision not to disqualify them is under challenge before the Supreme Court.

In June last year, Vice President Venkaiah Naidu issued orders to “merge” the TDP with the ruling BJP in Rajya Sabha after four of its five MPs defected. Although TDP still has a presence in the Upper House through its lone MP, the party was deemed to have merged only for the purpose of not attracting penalty under the Tenth Schedule for the four MPs who defected. The TDP, too, raised arguments similar to what BSP is now claiming that a “merger” can only take place at an organisational level of the party and not in the House.

In 2016, two years after the TDP won 15 seats in the Telangana elections, 12 of its MLAs joined the ruling TRS. The Speaker recognised the defection as a merger since more than two-thirds had moved.