The post-election Trinamool Congress (TMC) gives an impression that it is breaking up. In the West Bengal assembly, majority of its 80 MLAs have broken up with the party and the leader of the break-away group, another Banerjee has been recognised by the speaker as the leader of opposition. This leader, if media reports are true, has assured full support to the government. It is a paradox and, in a sense, perfectly comical that a leader of opposition, who, under the relevant law, is the leader of the party in opposition to the government is assuring full support to the government. How can such a person become the leader of opposition?Sir Ivor Jennings in his “cabinet government” says, “Attacks upon the government and upon individual ministers are the function of the opposition. The duty of the opposition is to oppose.” But in today’s India, a person who assures full support to the government becomes the leader of opposition. This perhaps makes some sense when we consider what is happening to the TMC post its rout in the election. It is indeed very amusing to see the exodus of MLAs and MPs of this party in the direction of the Bharatiya Janata Party (BJP) which has now captured West Bengal, in such haste. They seem to be in a great hurry to be on the side of the ruling party. In this process, none of them seem to have given a moment’s thought to the law and the constitution which ultimately count when their action is judged by a court of law. But before we analyse the legal implications of the action of MLAs and MPs one more thing needs to be mentioned. The kind of exodus of MLAs and MPs of the TMC and the speed with which it has happened seems to be unprecedented even in the inglorious history of political defections in the country. After all, many parties have lost badly in many elections in the past. The Congress, Communist Party of India (Marxist) (CPI(M)), Dravida Munnetra Kazhagam (DMK) and many other parties have lost elections pretty badly at different stages. But we never saw such an exodus from any of those parties in such a short time.Also read: Full Text | ‘Parties Splitting Is Unhealthy, It Keeps the Opposition From Doing Its Job’It is of course an interesting thought that if the TMC had won the election none of them would have intended to leave or resign. The leader of that party then would have received the loudest applause from these very people for whatever was happening in that state during the past 15 years. Now, turning to the legal and constitutional issues thrown up by the majority of MLAs and MPs moving out of the party, it must be said that they are not very clear in their minds about what and how they should manage this situation. In the West Bengal assembly, the speaker has recognised a dissident leader of the TMC as the leader of opposition. It is said that he was expelled from the party and quite rightly the Calcutta high court has asked the speaker how he recognises him as the leader of opposition. But the more pertinent question is who selected him as the leader of the legislature party.The law says a leader of the numerically largest party in opposition to the government is selected or appointed by the party as the leader of the opposition (LoP).Here the party means the political party which is the TMC led by Mamta Banerjee. So, unless Mamta Banerjee appoints him as the leader of the legislature party and recommends his name to the speaker he cannot become the leader of opposition. Any departure from this practice is contrary to established legal procedure. The Supreme Court has in Subhash Desai vs Principle Secretary, government of Maharashtra (2023) stated that it is the political party which means the leader of the party who appoints the legislature party leader, the chief whip etc. Therefore, the approval and recognition as leader of opposition of the dissident leader by the West Bengal speaker seems to lack legality.Media reports suggest that 19 of the 28 TMC MPs of Lok Sabha have written to the speaker requesting him to treat them as a separate block and allot them seats in the National Democratic Alliance (NDA) section in the Lok Sabha. It is not known whether the speaker has responded to their request. As a matter of fact, the speaker has no role at this stage of political development. There is no legal provision which empowers the speaker to treat a group of dissident MPs as a separate block or group. Prior to the enactment of the 10th Schedule of the constitution, speakers used to treat rebel MPs who come out of their parties as ‘unattached’ and allot them separate seats in the House. But that practice came to an end with the enactment of the 10th Schedule which is popularly known as ant-defection law. This law does not permit the speaker to treat the dissidents as unattached. Under this law any member of a party who voluntarily gives up the membership of his party will be disqualified, whether he joins another party is immaterial. If his party is convinced that he has, by his action, voluntarily given up the membership of his party it can seek his disqualification from the House. In this context, it needs to be emphasised that the anti-defection law brings the political party to the centre of the scheme of things and gives it primacy. In Kihoto Hollohan vs Zachillu (SC 1992), decided by the constitution bench of the Supreme Court, the court has emphasised the centrality of political parties in the law on defection. The court says, “These provisions in the 10th Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up a candidate at the election on the basis of such a programme. A person who gets elected as a candidate set-up by a political party is elected on the basis of the program of that political party. Paragraph 2(1)(a) proceeds on the premise that political propriety and morality demand that if such a person after the election changes his affiliation and leaves the political party which had set him up as a candidate, he should give up his membership of the legislature and go back before the electorate.”Also read: Baba Bharti’s Fear Comes True in the RSS’s Washing Machine DurbarThus, the apex court clearly brings out in this landmark case the basic crux of the anti-defection law. In the case of the TMC dissidents the speaker can intervene only when a petition is filed by the TMC leader or any other person seeking to disqualify the dissidents. Even if they project themselves as a different group under the law, they continue to remain members of the TMC.Finally, there is a lot of confusion created by some veteran and not-so-veteran defectors that if two-thirds of MPs or MLAs merge with another party they will not be disqualified under Para 4 of the 10th Schedule. This para can exempt an MP or MLA only if their original party merges with another party and two third of the MPs or MLAs agree with the merger and become members of the other party. It must be understood that the merger is of the original political party and not of MPs or MLAs. They can only agree with the merger. Most of the MPs and MLAs of the TMC who have rolled up their sleeves to jump ship should read what the Supreme Court has said in Dr. Mahachandra Prasad Singh vs Chairman, Bihar Legislative Council (2004) and Subhash Desai (SUPRA). The court has, in both the cases, made it reasonably clear that for getting exemption from disqualification under Para 4 there has to be a merger of the original political party with another party. If some MPs or MLAs go and join another party it is no merger, it is defection plain and simple. The Supreme Court in Subhash Desai says, “The purpose of the 10th Schedule is to disincentivise and penalise the constitutional sin of defection” (Para 128). This law cannot be allowed to become a plaything of political shenanigans by unprincipled representatives of people. P.D.T. Achary is the former secretary general of Lok Sabha.