SC to consider Sena (UBT) plea against Speaker’s approval of MPs’ ‘unilateral merger’

The Supreme Court on Tuesday (July 21, 2026) agreed to consider to urgently hear a plea by Shiv Sena (Uddhav Bal Thackeray) party challenging Lok Sabha Speaker Om Birla’s grant of approval to six of its nine MPs unilaterally “merging” with rival Shiv Sena faction led by Maharashtra Deputy Chief Minister Eknath Shinde ahead of the Parliament’s Monsoon session.

“My functioning as a political party in the Parliament has come to an absolute standstill because the MPs are not with me. The Speaker has recognised their merger with some other political party. This was intended for the Parliament session. I am seeking a hearing tomorrow [July 22],” senior advocate Devadatt Kamat, appearing for the UBT faction, orally mentioned before Chief Justice of India Surya Kant.

Mr. Kamat said such ‘mergers’ were happening all over the country. He said ‘merger’, a device originally meant to safeguard legislators’ rights of expression and intra-party dissent from the anti-defection law, has metamorphosed into a cover for horsetrading. Legislators bypass the requirement that any merger should happen at the level of the original political party, and not the legislative party.

“The six MPs decided to merge unilaterally without the merger of the original political party. They just said ‘we have merged with the rival party’. They have joined a party we had contested against,” Mr. Kamat said.

Recently, Rajya Sabha Member Raghav Chaddha and six other former Aam Aadmi Party MPs had joined BJP, describing their move as a merger.

Paragraph 2(1)(a) of the Tenth Schedule (anti-defection law) of the Constitution stipulates that Members belonging to ‘any political party’ would be disqualified from the House for defection if they voluntarily gave up membership of the party. Paragraph 4 of the Tenth Schedule delves into what makes a valid merger. The first condition is that there must be a merger of the original political party with another party. The second condition is that, after the merger, two-third members should agree to and adopt such a merger. In short, the act of merger has to originate with the original political party.

A 2023 Constitution Bench judgment in Subhash Desai versus Principal Secretary, Governor of Maharashtra confirmed that the ‘original political party’ and the ‘legislature party’ were “distinguishable concepts” under the Tenth Schedule. The distinction between the two was neither artificial nor intertwined. Paragraph 1(b) of the Tenth Schedule defined ‘legislature party’ as a group of Members who belong to a particular party and Paragraph 1(c) construed an ‘original political party’ as the party to which the Members belonged to.

The judgment said the Tenth Schedule recognised the independent existence of a legislature party only to the limited extent of presenting a defence for Members, who back a merger or split (the latter was omitted as a defence in 2003) initiated by the original political party, against bulk disqualification action.

The Supreme Court is currently examining a petition filed by Congress leader Girish Chodankar, who has argued that “mergers of State legislature parties in Opposition led by the Leader of Opposition are not only a Constitutional sin but also amount to a direct attack on the democratic setup of an Assembly”.

The petition, filed by advocate Muhammad Ali Khan, is challenging a Bombay High Court decision of January 16, 2025. The High Court had accepted the legislators’ move over to the BJP as a valid ‘merger’. Mr. Chodankar has argued that “anomalous situations” would arise if the original political party was left to the mercy of the “whimsical musings of the majority members of a less conspicuous legislature party”.

Mr. Kamat reminded the court about the pending case filed by Mr. Chodankar, urging to settle the question of law expeditiously.