Representational
The law has a long-standing habit of pretending: that an adopted child is the natural child of the adoptive parents, that a registered company is a person capable of suing and being sued. Sir Henry Maine, in Ancient Law (1861), called the legal fiction one of three great agencies, alongside equity and legislation, by which law adapts to changing societies, tracing it to the Roman fiction.
The device has not been universally welcomed; historically, jurists worried that fictions allowed judges to make law in disguise. Lon Fuller, in his Stanford monograph Legal Fictions (1967), laid down the modern test: a fiction is honest only when its falsity is openly acknowledged; once it is “taken seriously”, once people begin to treat the pretence as fact, it loses its utility and becomes dangerous. A fiction is a tool, fashioned for a defined end, and works only within that end.
On legal fiction in India
In Indian constitutional law, the leading authority on this discipline is Bengal Immunity Co. Ltd. vs State of Bihar(1955), decided by a seven-judge Constitution Bench. The case concerned a Calcutta-based company that manufactured vaccines and sera and sold them to buyers in Bihar; Bihar sought to tax those sales by relying on a deeming clause then attached to Article 286(1) of the Constitution, which treated a sale as having taken place in the State where the goods were delivered for consumption. The Court rejected Bihar’s argument, holding that the deeming clause served only to fix the location of a sale for one purpose and could not be stretched to override the separate constitutional bar on State taxation of inter-State trade. Acting Chief Justice S.R. Das laid down the formulation that has since governed: a legal fiction is created for a definite purpose, must be limited to that purpose, and must not be extended beyond its legitimate field.
A complementary discipline came from Lord Asquith of the House of Lords in East End Dwellings Co. Ltd. vs Finsbury Borough Council (1952): one must imagine the necessary consequences of the fiction, but must not let imagination “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 fiction in the Central Excise Rules to its stated purpose.
That this discipline remains current was reaffirmed on March 10, 2026, in Registrar Cane Cooperative Societies vs Gurdeep Singh Narval by the Supreme Court. The case concerned two sugarcane growers’ cooperative societies, Bajpur and Gadarpur, whose villages had fallen partly in Uttar Pradesh and partly in Uttarakhand after the new State was carved out of Uttar Pradesh in 2000. Years later, a member of the Bajpur society argued that his society had automatically become a “Multi-State” cooperative society on the date of bifurcation by virtue of a deeming clause in Section 103 of the Multi-State Cooperative Societies Act, 2002. Justices P.S. Narasimha and Alok Aradhe rejected the argument. The deeming fiction in Section 103 had a defined purpose: to govern societies whose stated objects extended to more than one State. It could not be extended to undo a completed reorganisation of societies whose objects were confined to a single State. The case was about cooperative societies; the principle it applied governs every deeming clause in every statute.
The merger of political parties
Among the deeming clauses of political consequence is paragraph 4(2) of the Tenth Schedule of the Constitution (on disqualification for defection). Paragraph 4 protects legislators when their original political party merges with another and two-thirds of the legislature party agree to it.
The merger of the original party is the substantive condition; the legislative threshold is the verifying count. Paragraph 4(2) provides that a merger “shall be deemed to have taken place if, and only if” the two-thirds is met. Read against the Bengal Immunity case, these words tell the adjudicator how to verify a merger that has happened in the original political party, not that the legislators’ assent is itself the merger.
That distinction was settled, on a parallel clause, by a 2007 Constitution Bench in Rajendra Singh Rana vs Swami Prasad Maurya. The argument that a legislature-party threshold could itself satisfy the substantive event in the original party would, the Court said, render one limb of the clause redundant. The court rejected it, holding further that the Speaker has no independent power under the Tenth Schedule to recognise either a split or a merger. The Punjab and Haryana High Court applied this in Speaker, Haryana Vidhan Sabha vs Kuldeep Bishnoi(2011): legislators alone cannot effect a merger; the original political party itself must take the substantive decision.
Recent practice, however, has allowed distortions. The Bombay High Court (Goa Bench) has twice upheld merger orders based solely on a two-thirds resolution of legislators, in 2022 and January 2025; the latter is under challenge before the Supreme Court. In April, the Rajya Sabha Chairman accepted, by administrative decision, the merger of seven Aam Aadmi Party MPs with the BJP on the same reading. A disqualification petition by the AAP has been filed. Bengal Immunity and Rana, read together, would have arrived at the opposite conclusion.
The reason is doctrinal. A deeming clause read as constitutive ceases to be a fiction. It becomes a substantive grant of power: the power of a faction of legislators to declare a merger that the parent political party has not authorised. That is the danger Fuller named and acting Chief Justice Das addressed when he confined legal fictions to their definite purpose.
The discipline of legal fictions is a working test that the Supreme Court applies to every deeming clause before it: it tells the interpreter what a fiction is for, what it can do, and where it must stop. The merger exception of the Tenth Schedule is one venue where the test is yet to be applied with rigour.
(V. Venkatesan is a journalist and legal researcher.)
Published – May 08, 2026 07:00 am IST
