Supreme Court seeks Centre’s reply on Kapil Sibal’s plea on anti-absconding law

Rajya Sabha MP Kapil Sibal. File | Photo credit: ANI

The Supreme Court on Monday (July 27, 2026) asked the Union government to respond to a petition filed by senior advocate Kapil Sibal challenging the interpretation of the ‘merger’ exception under the Anti-Taking Act contained in the Tenth Schedule of the Constitution.

An independent member of the Rajya Sabha questioned the interpretation of the “amalgamation” exception under clause 4 of the Tenth Schedule, under which a political party is deemed to have “amalgamated” with another political party merely on the basis that two-thirds of the members of its legislature have claimed such an amalgamation, even though there is “no other indication” that the original political party has actually amalgamated.

Read also| Defection as fusion: On politics, a wave of defections

Mr Sibal, appearing as a personal petitioner, submitted before a bench of PS Narasimha and Alok Aradhe that such an interpretation of Section 4 would have “huge implications” for the polity as the electoral majority can be converted into a minority by resorting to mergers. He argued that the Constitution did not allow for a situation where a legislative party could, on its own, carry out a putative merger of the original political party without any formal merger process or approval of the party leadership.

“This has huge implications for our polity. Please look at the enormity of the problem. The electoral verdict can be changed. A minority can become a majority and a majority a minority,” Mr Sibal said.

Paragraph 4 of the Tenth Schedule provides for an exemption from disqualification on the ground of defection where a legislator joins another political party by virtue of a merger of the legislator’s original political party. According to Section 4(1), a member is protected from expulsion if the original political party has merged with another political party and the member acts in accordance with this merger. Section 4, paragraph 2 provides that such a merger is deemed to have taken place only if at least two-thirds of the members of the legislature agree to it. The exemption, as reflected in the parliamentary debates preceding the enactment of the Tenth Plan, was intended to protect principled defection arising from genuine ideological realignments rather than opportunistic policy shifts.

“Matters for Parliament”

Acknowledging the concerns raised regarding the working of the Tenth Schedule, the Bench expressed reluctance to entertain the petition, noting that any inadequacies in the anti-browsing law were a matter for Parliament to take up.

“These are issues that are typically to be raised before the floor of the House.. If not, at least before the political parties. The Tenth Plan is supposed to regulate the mechanism between the legislatures… What happened while working on the Tenth Plan, we have seen huge issues regarding the Tenth Plan,” Justice Narasimha observed.

Mr. Sibal said the issue was unlikely to be resolved through the legislative process because the prevailing interpretation favored those in power. He also mentioned the 2022 Goa defection matter which is pending in the Supreme Court.

In 2022, eight of the 10 Congress MLAs in Goa, who claimed to form two-thirds of the Congress Legislature, declared a “merger” with the BJP and sought protection under the Tenth Schedule. A separate petition filed by Congress leader Girish Chodankar, pending in the Supreme Court, claims that “mergers of state legislative parties in opposition led by the Leader of the Opposition are not only a constitutional sin but also amount to a direct attack on the democratic set-up of the assembly”. The petition challenges the judgment of the Bombay High Court on 16 January 2025 which upheld the switch of legislators to the BJP as a valid “merger”.

Ultimately, the Bench agreed to issue a notice of petition and review the competing interpretations of the merger exemption under the Anti-Towing Act.

“License to Avoid Disqualification”

The petition claims that more than two decades after the amendment of the Tenth Schedule, political actors have increasingly sought to use the presumption contained in Section 4(2) as a means of circumventing the anti-default law. According to the lawsuit, lawmakers interpreted the provision as a “license” to avoid disqualification by believing that the party had merged without formal merger proceedings, or even “the appearance that a majority of party members ever contemplated a merger.”

“The requirement of 2/3 of the members of the legislative party to agree to the merger is a legal fiction/assumption that is a precondition of the mechanism to ensure that the merger of the party was widely accepted and not based on factions jockeying for position. If 2/3 of the legislative parties did not agree to the merger as a precondition, the exception cannot be considered,” he adds.

Mr. Sibal further submitted that paragraphs 4(1) and 4(2) are to be read together and not in isolation. A separate reading of Article 4(2) would, according to the plea, extend the merger exception to such an extent as to render the Tenth Schedule largely redundant, as recent policy developments have shown.

“It is trite law that Article 4(2) cannot be interpreted to render large parts of Article 4(1) redundant. If the Constitution had intended for the legislative party alone to decide on amalgamation, it would not have included a requirement for a political party in Article 4,” the plea states.

Published – 27 Jul 2026 14:21 IST