Representative image | Photo credit: SUSHIL KUMAR VERMA
It is a well-established practice in the law to pretend: that the adopted child is the natural child of the adopters, that the registered company is a person capable of suing and being sued. Sir Henry Maine, in Ancient Law (1861), called legal fiction one of the three great agencies, besides justice and legislation, by which law adapts itself to changing societies, and traces it back to Roman fiction.
The device was not universally welcomed; historically, lawyers worried that fictions allowed judges to legislate in disguise. In his Stanford monograph Legal Fictions (1967), Lon Fuller laid down the modern test: a fiction is honest only when its falsity is openly acknowledged; once it is “taken seriously”, once people begin to see the pretense as reality, it loses its usefulness and becomes dangerous. Fiction is a tool created for a defined goal and works only within that goal.
On Legal Fiction in India
In Indian constitutional law, the leading authority on this discipline is Bengal Immunity Co. Ltd. versus State of Bihar (1955) decided by a seven-judge Constitution Bench. The case involved a Calcutta-based company that manufactured vaccines and serums and sold them to buyers in Bihar; Bihar sought to tax these sales by relying on the presumption clause then appended to Article 286(1) of the Constitution which deemed the sale to have taken place in the State where the goods were supplied for consumption. The court rejected Bihar’s argument, saying that the presumption clause served only to determine the place of sale for one purpose and could not be expanded to overcome a separate constitutional bar to state taxation of interstate commerce. Acting Chief Justice SR Das laid down a formulation that has stood ever since: a legal fiction is created for a purpose, must be confined to that purpose and must not be extended beyond its legitimate domain.
Additional discipline came from Lord Asquith of the House of Lords at East End Dwellings Co. Ltd. vs. Finsbury Borough Council (1952): the necessary consequences of fiction must be imagined, but the imagination must not be ‘tangled’ by them. The Supreme Court of India adopted this formulation in JK Cotton Spinning and Weaving Mills Ltd. vs Union of India (1987) while limiting the fiction of presumption in the Central Excise Rules to its stated purpose.
That this discipline remains relevant was reaffirmed on 10 March 2026 in Registrar Cane Cooperative Societies vs Gurdeep Singh Narval by the Supreme Court. The case involved two sugarcane cooperatives, Bajpur and Gadarpur, whose villages fell partly in Uttar Pradesh and partly in Uttarakhand after a new state was carved out of Uttar Pradesh in 2000. A few years later, a member of the Bajpur society claimed that his society had automatically become a “multifurt society of state disintegration”. clause in Section 103 of the Multi-State Cooperative Societies Act, 2002. Justices PS Narasimha and Alok Aradhe rejected the argument. The fiction of the presumption in Section 103 had a defined purpose: to govern companies whose stated objectives extended to more than one state. It could not be extended to the annulment of a completed reorganization of companies whose objects were confined to a single State. The case involved co-operative societies; the principle it applied governs every contemplation clause in every law.
Merger of political parties
Among the political consequence clauses is clause 4(2) of the Tenth Schedule of the Constitution (on expulsion for defection). Paragraph 4 protects legislators when their original political party merges with another and two-thirds of the legislature agrees.
The material condition is the merger of the original party; the legislative threshold is the number for verification. Subsection 4(2) provides that the merger “shall be deemed to have taken place if and only if” two thirds are satisfied. Read against the Bengal Immunity case, these words tell the judge how to verify the merger that took place in the original political party, not that the consent of the legislatures is itself a merger.
This difference was settled by a parallel clause by the Constitution Bench in 2007 in Rajendra Singh Rana vs Swami Prasad Maurya. Arguing that the legislature-party threshold alone could satisfy the original party’s material event would render one part of the clause redundant, according to the Court. The court rejected this, saying that the Speaker has no independent power under the Tenth Schedule to recognize division or amalgamation. The Punjab and Haryana High Court used it in Speaker, Haryana Vidhan Sabha vs Kuldeep Bishnoi (2011): legislatures alone cannot effect a merger; the substantive decision must be taken by the original political party itself.
However, recent practice has allowed for distortion. The Bombay High Court (Goa Bench) twice upheld merger orders based only on a two-thirds resolution of the legislatures, in 2022 and January 2025; the latter is challenged in the Supreme Court. In April, the Chairman of the Rajya Sabha took an administrative decision to merge seven Aam Aadmi Party MPs with the BJP in the same reading. AAP filed a disqualification petition. Bengal Immunity and Rana, read together, would lead to the opposite conclusion.
The reason is doctrinal. A deliberative clause read as constitutive ceases to be a fiction. It becomes a de facto grant of power: the power of a faction of legislators to declare a merger that has not been authorized by the parent political party. This is the danger that Fuller named and Acting Chief Justice Das addressed when he limited legal fictions to their particular purpose.
The discipline of legal fictions is a working test that the Supreme Court applies to every putative clause before it: it tells the interpreter what the fiction is for, what it can do, and where it must stop. The merger exemption under the Tenth Schedule is one place where the test is yet to be strictly applied.
(V. Venkatesan is a journalist and legal researcher.)
Published – 8 May 2026 07:00 IST
