This position was upheld by the Supreme Court in its 2023 Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra. The Court held that the โoriginal political partyโ and the โlegislature partyโ are distinct entities under the Tenth Schedule. Paragraph 1(b) defines a โlegislature partyโ as a group of members belonging to a particular political party in the House, while Paragraph 1(c) defines an โoriginal political partyโ as the party to which such members belong outside the legislature.
Despite the Supreme Courtโs 2023 ruling, a Bombay High Court on 16 January 2025 approved the shift of Goa Congress legislators to the BJP in 2022 as a valid โmergerโ. The rebel MPs from the Trinamool Congress are citing this ruling of the Bombay High Court as validation. The Supreme Court is however currently examining a petition filed by Goa Congress leader Girish Chodankar challenging the decision. The petition argues that โmergers of State legislature party in Opposition led by the Leader of Opposition are not only a โConstitutional sinโ but also amount to a direct attack on the democratic set-up of an Assemblyโ.
Senior Advocate Kapil Sibal believes the rebel TMC MPs have invited disqualification. Individually or as a group, the MPs cannot decide to merge the party with another party. The 28 or 20 Lok Sabha MPs do not constitute the Trinamool Congress Party, he points out. The โmergerโ provision is for parties and not individual MPs or a group of them, he argues. Critics question what the rebels can possibly โmergeโ? They themselves are the creatures of the party which gave them the symbol to contest elections. They can neither lay claim to the party nor the party symbol, structure or funds. What then are they merging?
โIt is the symbol of the party that helps you become a MLA or MP. Now, if the legislative party merges, they donโt take the symbol of the parent or original party they belonged to. So, they will be represented as MPs with reference to the symbol of a party from whose symbol they did not contest the election or get elected. It is per se illegal,โ he explains.
Former Lok Sabha secretary-general P.D.T. Achary also concurs with Sibal, emphasising that the Tenth Schedule recognises the centrality of political parties. It is the political party that can merge with another party, not the legislature party. Achary said sub-paragraph (2) of Paragraph 4 means that if the political party wants to merge with another, two-thirds of its MPs in a House have to agree to the said merger.
While the rebel camp cited the Bombay High Court verdict, Achary believes the 2023 Supreme Court verdict in the Shiv Sena split case (Subhash Desai vs principal secretary, governor of Maharashtra) made it clear that a legislature party cannot act independently of the political party. The Supreme Court said in its judgment that it was the political party and not the legislature party that appoints the Whip and issues directions to vote in a particular manner.
