TMC house of cards: Why rebel MPs under Kakoli Ghosh can't escape disqualification under anti-defection law

Mamata Banerjee's Trinamool Congress (TMC) is facing one of its gravest internal crises, with widening factional rifts, high-profile resignations and increasingly assertive rebels fueling speculation of a split.

Senior party leader and Lok Sabha MP Kakoli Ghosh Dastidar confirmed that a group of 20 parliamentarians has formally sought separate seating arrangements in the Lok Sabha, a move widely seen as a clear indication of an organisational split within the party's ranks.

Earlier, there were reports that the rebel TMC MPs met Union Minister Bhupender Yadav. Also, BJP leaders in West Bengal have triggered speculation of a possible alignment with the National Democratic Alliance (NDA). However, no official merger has been confirmed.

What does the law say about MPs leading to a split in a party? Well, any such move by a group of Parliamentarians from a party would require compliance with the anti-defection law under the Tenth Schedule of the Constitution, which mandates a two-thirds majority for recognition of a split.

“If they really had 20, I’m sure there would have been a letter out, there would have been signatures out, there would have been a joint press conference (with the BJP). I can categorically tell you that they don’t have 20 MPs.”

But even if there are 20 MPs, what does it mean? Will they be allowed to do so under the anti-defection law? Moitra argued that merely having a group of MPs does not automatically create a recognised faction under the anti-defection law. She said in the interview with HT that, for the law not to apply, two-thirds of the political party, and not just the legislative party, must move away and merge with the BJP.

“For the anti-defection law not to apply, two-thirds of not the legislative party, but the political party has to move away. And not only move away, but also merge with the BJP. So a) you have to have two-thirds, not even 19, two-thirds of the political party, which they don’t have,” she said,

There is no official number on the MPs backing Kakoli yet. Of the 28 TMC MPs in the Lok Sabha, 16 have backed her so far, while 12 remain with Mamata Banerjee, according to multiple media reports.

An elected member can be disqualified from the House, according to the law if:

1-Members voluntarily give up membership in the political party they were elected on.

2- If a legislator votes or abstains from voting in the House contrary to the written directive (whip) issued by their party, and the party does not pardon them within 15 days

Exceptions: A defection does not apply when a political party merges with another party if at least two-thirds of the legislators in the legislature party vote in favour of the merger.

In the present TMC case, the approval of two-thirds of the MPS will come into play only after the merger of the entire party, that is, the TMC and not just a bloc of the TMC, according to experts. So, rebel MPs cannot take any independent action under the law, unless their party, that is the TMC, merges with another party, they said.

“They can’t do that because 20 MPs out of 28 MPs have left the party and have defected, so they are liable to be disqualified under the tenth schedule,” former Lok Sabha Secretary General PDT Achary told Mint. “The law will treat them as defectors as long as there is no merger,” he said.

As of now, the two-thirds number is irrelevent, Achary saud adding that it would carry weight only when there is a merger between TMC and BJP. Even is there is a split in TMC, the rebel faction, led by Kakoli, can approach the Election Commission staking claim to be real party, something that happened with Shiv Sea when Eknath Shinde led a rebellion.

“The merger has to happen between two political parties which means Mamata Banerjee has to decide that their party will merge with the BJP. MPs alone are not the party, they are only a part of the party,” Achary explains.

Some experts have explained that there can be multiple interpretations to anti-defection law. In the Shiv Sena case, for example, they say the logic behind the tenth schedule was that there must be a split in the organisational structure before there is a split in the Parliamentary party.

Courts have also dealt with these instances. In 2022, the Bombay High Court allowed the merger of 12 Congress MLAs into the BJP in Goa. Goa Congress Chief Girish Chodankar had challenged the Goa Assembly Speaker’s order rejecting the disqualification of the MLAs.

The court said the merger of the MLAs who joined the BJP was valid, since they constituted two-thirds of their original legislative party. The judgment was challenged before the Supreme Court, and the petition is pending.

Under these circumstances, what remains to be seen is whether TMC splits and how many MPs the rebel group will have. For now, there is no official word on this.

(With agency inputs)