Scope of legal fiction in party mergers

The instrumentality has a long-standing wont of pretending: that an adopted kid is the earthy kid of the adoptive parents, that a registered institution is simply a idiosyncratic susceptible of suing and being sued. Sir Henry Maine, in Ancient Law (1861), called the ineligible fabrication 1 of 3 large agencies, alongside equity and legislation, by which instrumentality adapts to changing societies, tracing it to the Roman fiction.

The instrumentality has not been universally welcomed; historically, jurists disquieted that fictions allowed judges to marque instrumentality successful disguise. Lon Fuller, successful his Stanford monograph Legal Fictions (1967), laid down the modern test: a fabrication is honorable lone erstwhile its falsity is openly acknowledged; erstwhile it is “taken seriously”, erstwhile radical statesman to dainty the pretence arsenic fact, it loses its inferior and becomes dangerous. A fabrication is simply a tool, fashioned for a defined end, and works lone wrong that end.

On ineligible fabrication successful India

In Indian law law, the starring authorization connected this subject is Bengal Immunity Co. Ltd. vs State of Bihar (1955), decided by a seven-judge Constitution Bench. The lawsuit acrophobic a Calcutta-based institution that manufactured vaccines and sera and sold them to buyers successful Bihar; Bihar sought to taxation those income by relying connected a deeming clause past attached to Article 286(1) of the Constitution, which treated a merchantability arsenic having taken spot successful the State wherever the goods were delivered for consumption. The Court rejected Bihar’s argument, holding that the deeming clause served lone to hole the determination of a merchantability for 1 intent and could not beryllium stretched to override the abstracted law barroom connected State taxation of inter-State trade. Acting Chief Justice S.R. Das laid down the formulation that has since governed: a ineligible fabrication is created for a definite purpose, indispensable beryllium constricted to that purpose, and indispensable not beryllium extended beyond its morganatic field.

A complementary subject came from Lord Asquith of the House of Lords in East End Dwellings Co. Ltd. vs Finsbury Borough Council (1952): 1 indispensable ideate the indispensable consequences of the fiction, but indispensable not fto imaginativeness “boggle” beyond them. The Indian Supreme Court adopted that formulation in J.K. Cotton Spinning and Weaving Mills Ltd. vs Union of India (1987), confining a deeming fabrication successful the Central Excise Rules to its stated purpose.

That this subject remains existent was reaffirmed connected March 10, 2026, in Registrar Cane Cooperative Societies vs Gurdeep Singh Narval by the Supreme Court. The lawsuit acrophobic 2 sugarcane growers’ cooperative societies, Bajpur and Gadarpur, whose villages had fallen partially successful Uttar Pradesh and partially successful Uttarakhand aft the caller State was carved retired of Uttar Pradesh successful 2000. Years later, a subordinate of the Bajpur nine argued that his nine had automatically go a “Multi-State” cooperative nine connected the day of bifurcation by virtuousness of a deeming clause successful Section 103 of the Multi-State Cooperative Societies Act, 2002. Justices P.S. Narasimha and Alok Aradhe rejected the argument. The deeming fabrication successful Section 103 had a defined purpose: to govern societies whose stated objects extended to much than 1 State. It could not beryllium extended to undo a completed reorganisation of societies whose objects were confined to a azygous State. The lawsuit was astir cooperative societies; the rule it applied governs each deeming clause successful each statute.

The merger of governmental parties

Among the deeming clauses of governmental effect is paragraph 4(2) of the Tenth Schedule of the Constitution (on disqualification for defection). Paragraph 4 protects legislators erstwhile their archetypal governmental enactment merges with different and two-thirds of the legislature enactment hold to it.

The merger of the archetypal enactment is the substantive condition; the legislative threshold is the verifying count. Paragraph 4(2) provides that a merger “shall beryllium deemed to person taken spot if, and lone if” the two-thirds is met. Read against the Bengal Immunity case, these words archer the adjudicator however to verify a merger that has happened successful the archetypal governmental party, not that the legislators’ assent is itself the merger.

That favoritism was settled, connected a parallel clause, by a 2007 Constitution Bench in Rajendra Singh Rana vs Swami Prasad Maurya. The statement that a legislature-party threshold could itself fulfill the substantive lawsuit successful the archetypal enactment would, the Court said, render 1 limb of the clause redundant. The tribunal rejected it, holding further that the Speaker has nary autarkic powerfulness nether the Tenth Schedule to recognise either a divided oregon a merger. The Punjab and Haryana High Court applied this in Speaker, Haryana Vidhan Sabha vs Kuldeep Bishnoi (2011): legislators unsocial cannot effect a merger; the archetypal governmental enactment itself indispensable instrumentality the substantive decision.

Recent practice, however, has allowed distortions. The Bombay High Court (Goa Bench) has doubly upheld merger orders based solely connected a two-thirds solution of legislators, successful 2022 and January 2025; the second is nether situation earlier the Supreme Court. In April, the Rajya Sabha Chairman accepted, by administrative decision, the merger of 7 Aam Aadmi Party MPs with the BJP connected the aforesaid reading. A disqualification petition by the AAP has been filed. Bengal Immunity and Rana, work together, would person arrived astatine the other conclusion.

The crushed is doctrinal. A deeming clause work arsenic constitutive ceases to beryllium a fiction. It becomes a substantive assistance of power: the powerfulness of a faction of legislators to state a merger that the genitor governmental enactment has not authorised. That is the information Fuller named and acting Chief Justice Das addressed erstwhile helium confined ineligible fictions to their definite purpose.

The subject of ineligible fictions is simply a moving trial that the Supreme Court applies to each deeming clause earlier it: it tells the interpreter what a fabrication is for, what it tin do, and wherever it indispensable stop. The merger objection of the Tenth Schedule is 1 venue wherever the trial is yet to beryllium applied with rigour.

(V. Venkatesan is simply a writer and ineligible researcher.)