Who owns the mandate?

The TMC rebellion and the next test of India’s anti-defection law

Nearly four decades after India enacted the anti-defection law to curb political horse-trading, the Constitution is once again confronting a question it has never fully answered,” When elected representatives abandon the political party on whose symbol they were elected, who truly owns the electoral mandate; the legislators or the political party?”

The ongoing controversy involving rebel Members of Parliament from the Trinamool Congress (TMC), coupled with recent developments within the Shiv Sena, has revived this constitutional debate in a manner that could significantly reshape India’s anti-defection jurisprudence. What appears at first glance to be another episode of political realignment may ultimately become one of the most important constitutional tests since the Supreme Court’s landmark Shiv Sena judgment.

Recent reports suggest that the rebel TMC MPs are no longer merely claiming protection under the merger exception contained in the Tenth Schedule; they are reportedly asserting a claim over the TMC itself. Simultaneously, several Members of Parliament belonging to Shiv Sena (UBT) have moved towards the Eknath Shinde-led Shiv Sena faction, which presently enjoys recognition from the Election Commission as the official Shiv Sena. These developments have transformed isolated political events into a larger constitutional contest concerning party identity, legislative loyalty and the ownership of the electoral mandate.

To appreciate the significance of the present controversy, one must revisit the origins of India’s anti-defection law. The Tenth Schedule was introduced through the Fifty-Second Constitutional Amendment in 1985 in response to the infamous era of “Aaya Ram, Gaya Ram” politics. Legislators frequently switched parties for office, influence and political advantage, leading to instability and erosion of public confidence in democratic institutions.

The anti-defection law sought to restore political stability by disqualifying legislators who voluntarily gave up membership of their political party or violated party discipline. Initially, the law contained two major exceptions — one relating to splits and another relating to mergers. The split provision soon became a convenient constitutional loophole, enabling legislators to engineer artificial factions to avoid disqualification. Parliament eventually abolished the split exception through the Ninety-First Constitutional Amendment in 2003. Today, the merger exception remains the sole constitutional shield available to legislators facing disqualification.

The current TMC controversy centres around Paragraph 4 of the Tenth Schedule, which protects legislators from disqualification if at least two-thirds members of a legislature party support a merger.

On a plain reading, the provision appears straightforward. If the constitutional threshold is satisfied, why should disqualification follow?

Yet constitutional law is rarely that simple

The controversy raises a deeper question,” Can legislators carrying numerical strength within a legislature effectively transport an electoral mandate into another political formation even when the parent political party itself refuses to merge?” More importantly, “Can legislators claim ownership of the political party merely because they command a substantial majority within the legislature?”

The answers may lie in the shadow cast by the Supreme Court’s Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023) arising from the Shiv Sena split.

The Shiv Sena dispute fundamentally altered the constitutional conversation on defections. The rebel faction led by Eknath Shinde argued that numerical strength within the legislature entitled it to claim ownership of the political party itself. The Constitution Bench rejected that proposition.

The Court drew a critical distinction between a “political party” and a “legislature party.” It held that elected representatives do not constitute an independent constitutional entity detached from the organisational structure of the political party. A legislature party remains connected to the parent political party and cannot automatically claim ownership merely because it commands superior numbers within the House.

This principle settled one constitutional controversy. The TMC dispute now presents the next. If the rebel TMC MPs are indeed claiming that they represent the “real” Trinamool Congress, the controversy begins to resemble the constitutional conflict witnessed in the Shiv Sena litigation. The Supreme Court’s reasoning suggests that legislative strength alone may not be sufficient to establish ownership of a political party. Organisational legitimacy, party structure and recognition mechanisms under election law may become equally important considerations.

At the same time, the movement of Shiv Sena (UBT) MPs towards the Shinde-led Shiv Sena presents a different legal question. Unlike the original Shiv Sena dispute, the Election Commission has already recognised the Shinde faction as the official Shiv Sena and allotted it the party name and symbol. This creates a fresh constitutional puzzle. Can legislators be accused of defection when they align themselves with the faction that presently enjoys legal recognition as the political party itself? The law remains unsettled, and future litigation may be required to clarify the position.

There are compelling arguments on both sides

There are compelling arguments on both sides. Supporters of the rebels contend that Paragraph 4 of the Tenth Schedule protects a merger supported by two-thirds members of the legislature party, irrespective of the parent party’s wishes. Opponents argue that such an interpretation would undermine the anti-defection law by permitting defections through the back door.

At the centre of this constitutional drama stands the Speaker

Under Paragraph 6 of the Tenth Schedule, questions relating to disqualification are decided by the Speaker. Although the Constitution describes the Speaker’s decision as final, the Supreme Court in Kihoto Hollohan v. Zachillhu (1992) made it clear that such decisions remain subject to judicial review.

The Speaker, and eventually the constitutional courts, may therefore be required to answer a series of difficult questions:

• Is the alleged merger genuine?
• Can a legislature party invoke

Paragraph 4 without the approval of the parent political party?

• Does the Shiv Sena judgment require primacy to be accorded to the organisational party?
• And most importantly, what exactly is the anti-defection law designed to protect — the political party, the legislative majority, or the electoral mandate itself?

Beyond the fortunes of any particular political party, these controversies expose a deeper weakness within India’s anti-defection framework. The Constitution prescribes no mandatory timeline for deciding disqualification petitions. Consequently, legislators often continue functioning while constitutional questions remain unresolved. The very law intended to create political stability frequently generates prolonged uncertainty.

Ultimately, the TMC controversy and the continuing fallout of the Shiv Sena split raise a question that goes to the heart of representative democracy,” When citizens cast their vote, are they voting primarily for an individual candidate or for the political party represented by that candidate?

The answer may determine the future direction of India’s anti-defection law.

The Shiv Sena judgment answered one constitutional question. The TMC controversy may answer the next. And in doing so, it may well write the next chapter in India’s evolving constitutional jurisprudence on defections, democracy and the ownership of the electoral mandate.

The author is an Advocate-On-Record at the Supreme Court of India, constitutional expert, accredited mediator and arbitrator, with over 26 years of experience in constitutional law, litigation, arbitration and public policy; Views presented are personal.