Context: Recently, the Rajasthan High Court has issued notices to the speaker and secretary of the state legislative assembly and six MLAs, who contested elections on BSP tickets and then defected to the Congress.
Reason behind this 

• The BSP won six seats in Rajasthan but all its MLAs joined the Congress in September last year.
• But, now at the national level, BSP is arguing that a state unit of a national party cannot be merged without the party being merged at the national level.
• Besides, BSP national secretary has also issued a whip to 6 MLAs telling them to vote against the Congress in case there is a floor test.

It has cited two decisions of the Supreme Court to support its arguments:

• Jagjit Singh v State of Haryana 2006 case: In this case, 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.
• Rajendra Singh Rana And Ors vs Swami Prasad Maurya 2007 case: In the 2002 Uttar Pradesh elections, 37 MLAs — one-third of the BSP strength — “split” from the party after its government fell, to support Samajwadi Party. The SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.

But, why these judgments cannot be relevant today?

• 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.
• However, 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).

Firstly, is “merger” allowed under the constitution?

• 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.

Can a state unit of a national party be merged without the party being merged at the national level?

• 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 Rajasthan’s case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.

What about the whip?

• The whip issued by BSP national general secretary 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.
• A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

Constitutional Experts on Merger

• According to P.D.T. Achary, merger under the Tenth Schedule (anti-defection law) can take place only between two original political parties. There are two conditions that need to be fulfilled for a merger under the Tenth Schedule. 
• There should be a merger between two original political parties.
• Subsequently, 2/3rd of the members of that House belonging to that party should accept the merger. If 2/3rd of the members do not accept it, then the merger doesn’t happen as per the law.
• According to Achary, the anti-defection law basically aims at protecting the party system and not just at curbing defection.
• Subhash C. Kashyap also agreed with P.D.T. Achary by saying that for a merger, the party which sets up candidates for the election is the party which has to merge under the Tenth Schedule. And one of the requirements for this is that 2/3rd MLAs of that party should agree to the merger.
• However, Faizan Mustafa disagreed with the above position and questioned the concept of merger between two original parties. According to him, this would mean that the legislative party will not have any right to merge with anybody in any state. 
• He referred to the definition of ‘Legislature Party’ under the Tenth Schedule, which is defined as a ‘group consisting of all the members of that House’.
• According to him, the merger has to be seen “locally” and not at the national level. Mustafa also pointed out that nowhere does the Tenth Schedule talk about how a ‘national party’ should split or a ‘regional party’ should split.

Anti-defection law lists situations for disqualification on the ground of defection

• If an MP or an MLA “has voluntarily given up his membership of such political party” [clause 2(1)(a)], or
• If he/she votes or abstains from voting in the house contrary to any direction issued by his party, that is if he violates the party whip in the house [clause 2(1)(b)].
• If an independent candidate joins a political party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature.