The anti-defection law — political facts, legal fiction

The Tenth Schedule of the Indian Constitution, which governs anti-defection, has come under renewed scrutiny following a series of high-profile political rea...

What Happened

The Tenth Schedule of the Indian Constitution, which governs anti-defection, has come under renewed scrutiny following a series of high-profile political realignments in Maharashtra and at the national level.
The law was designed to deter legislators from switching parties after elections, but structural loopholes — particularly the merger exception — have repeatedly enabled defections under a legal cover.
Critics argue that the Speaker's adjudicatory role creates an inherent conflict of interest, since Speakers are themselves party appointees, leading to prolonged delays in disqualification proceedings.
Courts have had to intervene repeatedly to enforce timelines on disqualification decisions, revealing the gap between the law's stated intent and its operational reality.

Static Topic Bridges

The Tenth Schedule — Origin and Structure

The Tenth Schedule was inserted into the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985. It provides for the disqualification of members of Parliament and state legislatures on grounds of defection. The amendment was introduced to curb the practice of "aaya ram gaya ram" politics — a reference to the phenomenon of legislators switching parties for personal gain, which had destabilised several state governments in the 1960s and 1970s.

Enacted via the 52nd Constitutional Amendment, 1985
Covers members of both Houses of Parliament and all State Legislatures
Disqualification decided by the Speaker (Lok Sabha/state assemblies) or Chairman (Rajya Sabha/state councils)
A member is disqualified if they voluntarily give up party membership or vote against the party whip
The 91st Constitutional Amendment Act, 2003 removed the earlier provision allowing one-third of a party's legislators to split — raising the merger threshold to two-thirds

Connection to this news: The recurring defection crises highlight that the merger loophole — requiring only two-thirds of a legislature party's members — remains the central escape valve from disqualification.

The Merger Exception (Paragraph 4, Tenth Schedule)

Paragraph 4 of the Tenth Schedule creates an exception to disqualification in cases of a "merger." A merger is deemed valid if at least two-thirds of the members of a legislature party agree to it. Critically, the merger must originate from the original political party, not merely from its legislative wing. This distinction has been contested in several cases: legislators have argued "merger" while their original party disputes that any formal organisational merger occurred.

Requires two-thirds of the legislature party's strength to consent to the merger
Prior to the 91st Amendment (2003), even a one-third split was protected as a "split" exception; that provision was deleted
The original party organisation and the legislature party are treated as legally distinct — a merger of only the legislative wing may not satisfy the constitutional requirement
Neither the joining members nor the dissenting minority who remain with the original party are disqualified in a valid merger

Connection to this news: The legal controversy in current defection cases centres on whether a merger of the legislative wing alone — without a corresponding organisational merger of the original party — satisfies the constitutional test under Paragraph 4.

Kihoto Hollohan v. Zachillhu (1992) — Judicial Review of Disqualification

The Supreme Court's 1992 constitution bench judgment in Kihoto Hollohan v. Zachillhu is the foundational precedent on the Tenth Schedule. The court upheld the constitutional validity of the anti-defection law but struck down Paragraph 7, which had sought to bar judicial review of the Speaker's disqualification decisions.

Decided: February 18, 1992
3:2 majority upheld the Tenth Schedule as constitutionally valid
Paragraph 7, which excluded courts from reviewing Speaker's decisions, was struck down for not having been ratified by state legislatures as required under the proviso to Article 368(2)
The Speaker/Chairman, when deciding disqualification petitions, exercises a judicial (not legislative) function and is therefore subject to judicial review
Courts can intervene if the Speaker acts in violation of natural justice or the constitutional provisions

Connection to this news: Every defection crisis eventually tests the limits set by Kihoto Hollohan — specifically, how quickly courts can compel a Speaker to decide, and whether the Speaker's eventual decision can withstand judicial scrutiny.

Speaker's Role and Conflict of Interest Debate

The Tenth Schedule places adjudicatory power over disqualification petitions with the Speaker (in the Lok Sabha and state assemblies) and the Chairman (in the Rajya Sabha and state legislative councils). This design has been widely criticised because the Speakers are elected by their own party's majority in the House, creating a structural conflict of interest when ruling on petitions that may benefit the ruling party.

The Supreme Court in Nabam Rebia v. Deputy Speaker (2016) held that a Speaker facing a notice of removal cannot hear disqualification petitions
In Keisham Meghachandra Singh v. Speaker (2020), the Supreme Court directed that disqualification petitions must be decided within a "reasonable time" — generally interpreted as three months
The Law Commission (170th Report, 1999) and the Election Commission have both recommended transferring adjudicatory power from the Speaker to an independent tribunal

Connection to this news: The delayed disposal of disqualification petitions — sometimes pending for years — is the central institutional failure the law has been unable to remedy, because the Speaker's independence from party pressure is political rather than structural.

Key Facts & Data

Tenth Schedule inserted by: Constitution (52nd Amendment) Act, 1985
Merger threshold: Two-thirds of the legislature party's members (post-91st Amendment, 2003)
Pre-2003 position: One-third was sufficient for a "split" exception (now deleted)
Landmark case: Kihoto Hollohan v. Zachillhu, 1992 — Paragraph 7 struck down
Supreme Court mandate for timely disposal: Keisham Meghachandra Singh case (2020)
Law Commission recommended an independent tribunal in its 170th Report (1999)
The Tenth Schedule applies to both Parliament and all State Legislatures
Disqualification does not operate as a bar to contesting elections subsequently