New Delhi: Amid speculation that around 20 Trinamool Congress (TMC) Lok Sabha MPs led by Kakoli Ghosh Dastidar are preparing to break ties with the party and form a separate bloc in the Lower House, Constitutional experts say they may still face disqualification.
As it is, there is no clarity on the number of MPs in the rebel TMC camp. The Dastidar camp claims the support of 20 out of the total 28 TMC MPs, but two senior party MPs earlier told ThePrint that 16 have rebelled while 12 are still with the Mamata Banerjee-led Trinamool faction.
Experts say that under the anti-defection law, in this case it is not enough for two-thirds of the MPs to be saying they want to form a separate bloc or align with the NDA. That arrangement needs to be preceded by an official merger of the entire bloc instead.
The factional fight came to light on Monday, when TMC supremo Mamata Banerjee and party general secretary Abhishek Banerjee were in Delhi to attend an INDIA bloc meeting.
The same day, TMC MP Sharmila Sarkar said 20 TMC MPs had decided to form their “separate bloc” to support the NDA, blaming “corruption” in the TMC for the move.
A meeting of the rebels reportedly took place at the Delhi residence of BJP leader Union Minister Bhupender Yadav, with West Bengal Chief Minister Suvendu Adhikari also meeting with TMC MPs.
Earlier last week, expelled TMC leader Ritabrata Banerjee wrote to West Bengal Assembly Speaker Rathindra Bose, staking claim to the post of the Leader of the Opposition in West Bengal Assembly and claiming to have the backing of 58 TMC MLAs.
While the Speaker reportedly recognised Ritabrata Banerjee as the Leader of Opposition, Constitutional experts had told ThePrint that the prerogative of picking the LoP rested with Trinamool Congress supremo Mamata Banerjee instead.
The war of factions has now reached Lok Sabha.
However, Constitutional experts say that just two-thirds of Lok Sabha MPs wanting a separate bloc might not amount to a merger and shield them from disqualification.
“They can’t do that because 20 MPs out of 28 MPs have left the party and have defected, so they are liable to be disqualified under the tenth schedule,” former Lok Sabha Secretary General PDT Achary told ThePrint.
Under the tenth schedule of the Constitution—commonly known as the anti-defection law—voluntarily giving up the membership of the original party or voting against the whip can be treated as defection. Members indulging in such practices can be disqualified under the tenth schedule.
The only defence available for a dissident group against disqualification is a merger with another political party. It, therefore, allows legislators to avoid disqualification if the legislator’s party merges with another party, and not less than two thirds of them agree to the merger and walkout of the original party.
Senior Advocate Saurabh Kirpal also explains, “Though the law is not fully settled, the commonly accepted view is that a merger means a merger by the political party (organisation), not just the legislative party. So to claim that they (the legislators) have split or merged may necessarily attract disqualification.”
Kirpal asserts that the MPs cannot claim to be a separate bloc in the absence of a merger.
“They have to merge. They can’t be a separate bloc, because that is a split then, and a split has been deliberately done away with,” he told ThePrint, pointing to the fact that the tenth schedule originally allowed legislators to evade disqualification if one-third of the legislators of a political party split from it. However, this exception was removed through an amendment in 2004, and only the merger exception was retained.
“The idea of doing away with a split was to stop easier horse trading. So the bar has been raised now from splits to merger,” he added.
Apart from the legality, Kirpal also points to the “morality of the movement, betraying the electoral mandate”. “That (morality) is often forgotten in the minutiae of discussion on the legal aspect of it, but even in law, I don’t know how they can simply split in this manner.”
Also Read: Abhishek Singhvi wants to ‘abolish’ speakers’ power to judge defection. ‘They’re not neutral’
The two-thirds fallacy
While the fact that the 20 MPs form “two-thirds” of the party’s strength in the Lok Sabha is being cited as a defence against their potential disqualification, Constitutional experts argue that the approval of two-thirds legislators comes into picture only after the merger of the entire party.
Achary explains that these MPs cannot take any independent action under the tenth schedule, unless their party, that is the TMC, merges with another party.
“The two-thirds number does not mean anything at this stage. This number makes sense only when there is a merger between TMC and BJP. If that is not taking place, this number has no significance at all,” he told ThePrint.
Achary asserts that if there is a split in the party itself, then the faction can go to the Election Commission of India, claiming to be the real party. However, that does not amount to a merger as well.
“The merger is between two political parties, that means Mamata Banerjee has to decide that their party will merge with the BJP. MPs alone are not the party, they are only a part of the party. The party is much bigger than that, it’s an organisation. The entire party needs to merge with BJP, only then these people can join the party and say that they have done so because there is a merger,” he asserted.
On the text of the tenth schedule, Kirpal says that there may be two interpretations as to whether for the merger, there has to be a split in the main organisational party or not.
“While one reading suggests that that is not necessary and a simple two-thirds split in the members of the Lok Sabha would be sufficient, there are certainly dicta in the Shiv Sena case which say that the rationale and the logic behind the tenth schedule is such that there must be a split in the organisational structure before there is a split in the Parliamentary party,” he says.
Kirpal says that both the views are supported by judgments, but by “sheer logic, the latter— requiring a split in the party organisation— seems more acceptable”.
“The idea of a merger, in common sense, is that the parties become one. It’s never just about individuals. If you read the text of the tenth schedule, it seems open to both interpretations, but if you go by the spirit as to why the tenth schedule was introduced, then I think it is certainly the case that you require a merger of the party per se,” he says.
(Edited by Ajeet Tiwari)