Rajasthan: Can BSP Move Harm Gehlot? Here’s What Law & Numbers Say

The case of the 6 BSP MLAs is a curious one as they had merged into the Congress last year

The Bahujan Samaj Party may have complicated matters for Rajasthan Chief Minister Ashok Gehlot, by instructing 6 MLAs elected on the party ticket to vote against the Congress in the eventuality of a trust vote.

BSP general secretary Satish Chandra Misra made this announcement on the night of Sunday 26 July in a release issued in the name of party supremo Mayawati.

However, the status of these six MLAs is disputed. Ten months ago, all the six MLAs had announced their merger with the ruling Congress, boosting its numbers in the Assembly. These MLAs are:

• Lakhan Singh from Karauli
• Deepchand from Kishangarh Bas
• Joginder Singh Awana from Nadbai
• Wajib Ali from Nagar
• Sandip Kumar from Tijara
• Rajendrasingh Gudha from Udaipurwati

However, the BSP is now disputing this merger of these 6 MLAs into the Congress. In its press release, it has argued that as BSP is a national party the merger of its MLAs in Rajasthan is not valid as the BSP hasn’t merged with the Congress at the national level.

Now giving the whip is the responsibility of the legislative party leader and not the central leadership of the party. But if the BSP’s argument is accepted, then it could alter the numbers’ game in the Rajasthan Assemby, making matters difficult for Chief Minister Ashok Gehlot.

The Numbers

Before the rebellion of Sachin Pilot, the Congress had the support of 124 MLAs:

• Congress: 107 (including 6 ‘merged BSP MLAs)
• BTP: 2
• CPI(M): 2
• RLD: 1
• Independents: 12

Now, by most accounts, Pilot has the support of 19 MLAs (18 from the Congress and one Independent). This takes the tally of pro-Gehlot MLAs down to 105 in the 200 members Assembly.

However, if the 18 pro-Pilot MLAs from the Congress (not the Independent) go against their party, they are likely to get suspended. This would bring down the strength of the House to 182, so Gehlot would still be above the halfway mark.

The CPI(M) has trouble of its own. One MLA Balwan Poonia has been suspended for a year for indiscipline. The other MLA Girdhari Lal Mahiya is reportedly busy fighting the locust attack that has hit his constituency Dungargarh in Bikaner district. The Left party is yet to make its stand clear on the issue, but it is unlikely to support any BJP-sponsored attempt. So its stand is likely to be to either support Gehlot or abstain.

The case of the Bharatiya Tribal Party (BTP) is similar. Though supporting the government, it had initially announced that it would remain neutral but of late it is said to have agreed to support Gehlot.

However, even if both BTP and CPI-M abstain, Gehlot would still have 101 out of 178. But if the BSP managed to win back its 6 MLAs or get them suspended, the numbers would become more precarious.

Does the BSP’s Argument Hold - Here What the Tenth Schedule Says

The provisions of the Tenth Schedule of the Constitution make up the anti-defection law in India. Paragraph 4 of the Tenth Schedule states that disqualification on grounds of defection does not apply in case of a merger of political parties.

Para 4(2) clarifies what is meant by the term 'merger': "the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger." (emphasis added)

The wording appears to clearly indicate that when deciding whether a merger has taken place, you have to see if 2/3 of the ‘legislature party’ have agreed to join the other political party – not the original party as a whole.

Legislature party is defined in Para 1 of the Tenth Schedule as follows:

"the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions".

The legislature party in this case would therefore be the BSP MLAs elected to the Rajasthan Legislative Assembly in 2018. It is unclear on what legal basis the BSP whip is claiming that the merger required the party as a whole to make a decision as it is a 'national party'. The Tenth Schedule itself creates no exception for national parties, and the courts have not created any such exception till now either.

Two Recent Mergers by National Parties

Two recent mergers by political parties in state Assemblies are extremely relevant here. Ironically, in both cases the Congress has been the party losing its MLAs to another party.

Both mergers took place within the space of about a month.

In June 2019, 12 out of 18 Congress MLAs merged into the ruling Telangana Rashtra Samithi under the tenth schedule of the Constitution. The Telangana Assembly Speaker accepted the merger citing that it fulfilled the criteria required as they constituted two-thirds of the total strength of the party in the Assembly.

A month later, 10 out of 15 Congress MLAs in the Goa Assembly merged into the BJP. This too was accepted by the Speaker.

So in both cases, two-thirds of the MLAs of a national party in the Assembly merged with another party. If these precedents are followed, the merger of 6 BSP MLAs into the Congress would be held valid.

Irrespective of these maneuvers, it does seem that the Gehlot government may remain safe unless Pilot is able to woo another chunk of MLAs into the rebel camp.