Are TMC Rebel MPs Liable To Be Disqualified Under Anti-Defection Law?

Reports have emerged regarding a rebellion within the All India Trinamool Congress, with a section of legislators challenging the authority of the party supremo, Mamata Banerjee.

The first indications of the rift emerged when 58 of the 80 MLAs of the TMC in the West Bengal legislative assembly supported expelled party legislator, Ritabrata Banerjee, to the post of Leader of the Opposition, questioning the pick of party leadership for the post, Sovandeb Chattopadhyay. The split escalated to the national level when several of its 28 MPs in the Lok Sabha, led by Kakoli Ghosh Dastidar, planned to form a separate bloc and support the BJP-led National Democratic Alliance government at the Centre. As per the latest reports, 19 MPs have sent their signatures to Lok Sabha Speaker seeking to sit as a separate faction.

Are the Trinamool MPs, by deciding to split from the party's official leadership, liable to face disqualification under the tenth schedule for committing political defection?

It is to be noted that the 10th schedule of the Constitution does not recognize 'split' as a defence. The only defence is 'merger' with another political party. Even if these 19 MPs are to merge with the BJP, they will still be violating the tenth schedule, according to this author, because the merger must happen at the level of the original party, and not just at the legislative party. So, merely because 2/3rd of the MPs have merged, it won't shield them from the anti-defection law, if the original party has not merged. This aspect has been explained in an earlier article dealing with the merger of Raghav Chadha and six other Rajya Sabha MPs with the BJP. Be that as it may, in the present case, the rebel MPs have not yet shown the plan to merge. Their intention seems to form a splinter group, and to eventually claim that they are the 'real Trinamool Congress', as happened in the cases of the Shiv Sena and the NCP.

When can a legislator be held to have 'given party membership' as per the 10th Schedule?

As per Paragraph 2(1)(a) of the tenth schedule of the Constitution, an elected member will be disqualified from the house "if he has voluntarily given up his membership of such political party". As per this provision, "political party" is the party which set up the member for election. So, if a Member of the Parliament, who was set up the TMC for the election, gives up membership of the TMC, it will be a ground for disqualification.

The Supreme Court, in Ravi S. Naik Vs. Union of India (1994), has held that tendering of a formal resignation is not necessary to give up membership, and that it can be inferred from the conduct of the member.  "Even in the absence of a formal resignation from the membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs," the Court had held in this judgment. 

Applying this rationale, the Supreme Court, in Sri Rajendra Singh Rana v. Swami Prasad Maurya (2007), held that the conduct of 13 BSP MLAs, who supported the Samajwadi Party to form government in Uttar Pradesh in 2003, amounted to "voluntary giving up of party membership". The Court therefore declared them as disqualified.

The Court held that the mere act of these MLAs visiting the Governor to extend support for the rival party's government was enough to hold that they had incurred disqualification, and no further evidence was necessary.

"Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule."

The Court also rejected the argument of the 13 BSP MLAs that there was a split in the party ('split' was a valid ground in 2003, and it was removed later that year). The Court held that these MLAs cannot raise the defence of split without establishing that there was a split in the original political party.

If a split is not recognized under the tenth schedule, then it is immaterial whether the splinter group has a majority in the legislature party. Even if the entire legislature party indulges in acts prohibited under Paragraph 2 of the tenth schedule (voluntarily giving up party membership or acting against the party whip), they ought to be disqualified under the anti-defection law. The tenth schedule nowhere recognizes the concept of “legislative majority” because the only defence is a merger with another party.

Can the rebels claim they are the real Trinamool?

Now, the claim of the rebel TMC group would be that they are the real TMC. This was the strategy which was followed in the Shiv Sena and NCP cases, where the rebel groups led by Eknath Shinde and Ajit Pawar respectively, were declared as the real political parties by the Election Commission of India. The ECI, in those cases, applied the test of legislative majority - that is, ascertaining which group had the maximum number of legislators. This is a totally inadequate test to determine the real political party in the cases of splits. As per the Sadiq Ali judgment of the Supreme Court, the numerical strength in the organisational wing of the party also has to be ascertained, and not just the legislative majority.

The Constitution Bench of the Supreme Court, in the 2023 judgment in Subhash Desai, held that the majority in the legislature is not the real test to determine which group is the real party. In the same judgment, the Court categorically held that a “legislature party” has no independent existence from the “political party”.

 To allow the legislative party to disconnect from its original political party will defeat the objectives of the tenth schedule, the Court stated. The relevant observations are quoted below :

​​“When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognize that the power to appoint a Whip vests with the political party.

To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party. This is not the system of governance that is envisaged by the Constitution. In fact, the Tenth Schedule guards against precisely this outcome.”

It is also pertinent to recall that the Supreme Court, while hearing Shiv Sena (UBT)'s petition challenging the Speaker's decision not to disqualify the Shinde faction, orally commented that the Speaker treating the Shinde group as the real Shiv Sena on the ground of legislative majority was contrary to the Subhash Desai judgment. Likewise, while hearing Sharad Pawar's challenge to the ECI giving the official NCP symbol to the Ajit Pawar faction, the Supreme Court orally observed that the ECI's logic in recognizing the real party solely based on legislaative majority can "engineer defections" and make a "mockery of the voter".

That indeed is the danger in legitimising such rebellions. It can mean that a certain number of legislators can undermine the voters' mandate. It will also embolden the rival parties with more resources to woo or threaten the legislators and hijack the party itself. Such trends do not bode well for democracy. If a legislator has disagreement with the party leadership, the honourable and ethical course is to resign and seek a fresh mandate. To hold on to the position secured by the party's support while abandoning allegiance to it is a betrayal of the electorate. The Tenth Schedule was enacted precisely to curb such practices. A strict application of its provisions would therefore render the actions of the rebel TMC MPs unlawful.