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What is taking Shinde so long? The law of merger under the Tenth Schedule

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New Delhi, Jun 28: The Maharashtra political crisis has blown out of proportion and the Maha Vikas Aghadi government is all set to lose power in the all important state. Rebel MLA, Eknath Shinde has claimed the support of 50 of the 55 MLAs that the Shiv Sena has.

While Shinde's faction needed 37 MLAs to dodge the Anti-Defection law one must also read Pargraph 4(2) of the Tenth Schedule of the Constitution which deals with mergers. It says only when two-thirds of the members agree to merge the party would they be exempt from disqualification.

Rebel Shiv Sena leader Eknath Shinde arrives to address media at a hotel where he is staying with other supporting MLAs, in Guwahati

Political parties have long argued that a state unit of a national party cannot be merged without the party being merged at the national level. The Tenth Schedule says that a merger of the party means merger of a legislative party of that House and in this case Maharashtra.

If one reads Paragraph 1 of the Tenth Schedule it says legislature party for the purpose of paragraph 4 dealing 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.

These issues had cropped up in the BSP split in Rajasthan. However the rules clearly state that the rule would apply to the Rajasthan legislative unit of the BSP and not at the national level of the party. In this context it also says that a national leader's direction cannot be considered to be a whip in the context of an anti-defection law.

In the 2006 Jagjit Singh vs Haryana case and the 2007 Rajendra Singh Rana vs Swami Prasad Maurya case the Supreme Court had ruled that a split cannot be recognised primarily because not all MLAs split at once. These cases deal with splits where one-third of the members of a legislative party split; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.

The 91st amendment to the Indian Constitution made in 2003 deleted Paragraph 3 from the Tenth Schedule. This came into force as the one-third split rule was misused by parties to engineer divisions and indulge in horse trading. One third was considered to be an easy target to achieve. Currently the law exempts defection only when it is two-thirds.

Until 2003 if two-third members left a party they could form a separate group and not attract the anti-defection law. This would mean that Shinde despite having two-third members have to merge with another party.

In this context one would also have to look at Paragraph 4(1) of the Tenth Schedule. It says a member of a House who was elected to it as part of a political party cannot be disqualified if their original political party merges with another party. For this to be valid, two-thirds of the members of the legislature party have to agree to the merger.

The Shinde faction in order to avoid disqualification will either have to prove before the Speaker and Election Commission that he has the numbers to be the original Shiv Sena. His next option would be to merge with another political party.

In the year 2016 12 of the 15 MLAs joined the ruling party and the Speaker recognised the defection as a merger as more than two-thirds had moved.

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