Introduction
In 1985, the Union Government enacted the Tenth Schedule to the Indian Constitution by the 52nd Amendment Act. Known as the ‘anti-defection law’, it aimed to tackle the problem of perennial political defections within India. The law, however, was passed in haste, rushed through two Houses and lacked any national consensus. It left some major vacuums which allowed the judiciary to tweak the law to suit varying societal temperaments.
The purpose of this article is two-fold: first, to identify the ‘lacunae’ in the provisions of India’s anti-defection law and second, to examine the judicial interpretations that have tried to fill these ‘lacunae’ while simultaneously constricting the law’s efficacy. The ultimate article’s purpose is to catalyse discussions around the need to overhaul Tenth Schedule.
Profiling the Tenth Schedule
Paragraph (6) of the Schedule grants wide powers to the Chairman or the Speaker of a House to decide as to the questions of disqualifications on grounds of defection, albeit without prescribing any deadlines for its decision. A popular judicial interpretation of this provision has been to make the Speaker the ‘final authority’ in determining the question of disqualification. Beginning in 1992 with the majority opinion in Kihoto Hollohon v. Zachilhu and Ors. (1992)[1] that also made the Speaker’s decision amenable to judicial review, his authority has been reaffirmed in Ravi S. Naik v. UOI (1994[2] Rajendra Singh Rana v. Swami Prasad Maurya (2007[3] and Subhash Desai v. Principal Secretary (2023[4]
Further, according to Paragraph (4), disqualification on ground of defection is made to not be attracted in case of “merger” between political parties.
A bare perusal of the law points to two fundamental lacunae: first, the vague ‘merger’ exemption coupled with finality of Speaker’s decision, and second, the absence of a deadline for the Chairman/Speaker to decide on disqualification petitions. The text of the Schedule is silent on
how these two situations must be interpreted, leaving space for judicial interpretation which has widened, rather than bridged, the vacuum between the law’s letter and its actual impact. I expand on this in next two sections.
The Curious Case of Mergers
As per sub-paragraph (1) of Paragraph (4) of the Tenth Schedule, a merger can only take place when the “original political party” merges with another political party, and per sub-paragraph (2), a merger of original party will be deemed to have taken place only if two-thirds of its “legislature party” members have agreed to the merger.
Now, per Paragraph (1)(c) of the Tenth Schedule, “original political party” means the political party to which a member belongs while per Paragraph (1)(b), legislature party means the group consisting of all members of a House for the time being belonging to one political party. The problem here lies in whether sub-paragraphs (1) and (2) of Paragraph 4 must be read conjunctively or disjunctively. If read conjunctively, the original political party must first merge into another party before its legislative position is even taken into consideration. This is a pre-requisite. A merger merely effected by its elected members in the Legislature, without the original political party merging, should then still attract disqualification notwithstanding they are two-thirds of the legislative strength in the House.
This seems like a plausible construction of Paragraph (4). However, it is not how it has been read routinely by Courts in India. For example, in 2019, 10 Members of Legislative Assembly (MLA) out of 15 member-strong Congress Legislature Party defected to the BJP in Goa. These 10 MLAs claimed to be two-thirds of the Congress legislative party in Goan Assembly. The Speaker dismissed disqualification petitions against the defectors citing a valid merger between the Congress and BJP legislature parties. The Speaker’s decision came up for challenge in Girish Chodankar v. Speaker, Goa Legislative Assembly (2022[5] before the Bombay High Court. The Court held that a “deemed merger” between the two partes had occurred since the 10 Congress MLAs comprised two-thirds of their legislature party. This was despite that there was no factual merger of the Congress and BJP parties at the national level. Crucially, the Court ruled that sub-paragraph
(2) and sub-paragraph (1) of Paragraph 4 of the Tenth Schedule are to be read disjunctively.
A plain reading of Paragraph (4)(2), which begins with the expression “for the purposes of sub-paragraph (1)”, would not sit well with this supposed deeming merger fiction. In fact, the court in its judgement only looked at sub-paragraph (2) of Paragraph (4), which is not parallel with the full content, context, and picture of Paragraph (4). Going by this judgement, the defecting members will be considered the original party, which precisely was the case in Maharashtra’s Shiv Sena split in 2022 and NCP Split in 2023 besides the recent TMC Split in West Bengal in 2026, none of which involved a merger. Given the line of decisions from Kihoto Hollohon to SubhashDesai which have held the Speaker to be final authority in deciding questions of defection, political prejudice has resulted in rebel group circumvent disqualification while evading mergers requirements too.
It ought to be mentioned that Subhash Desai judgement did attempt at drawing a difference between a ‘legislature party’ and ‘political party’, but the same was in context of validity of actions by rebel legislators, rather than conclusively on ‘merger’ between parties. As of today, the Bombay HC judgement is still the most comprehensive judgement on political mergers., though the same is pending challenge before the Supreme Court and has been refused to be stayed by the Apex Court. A disjunctive reading besides the finality accorded to Chairman/Speaker’s decision eases defection. What is worrying, however, is that Girish Chodankar interpretation has found support in previous decisions of Punjab and Haryana High Court and Guwahati High Court, to name a few. Essentially, then, the working of the Tenth Schedule, owing to lack of legislative guidance, becomes contingent on whether the two sub-paragraphs are read conjunctively or disjunctively. The consequences also befall on small parties with highly reduced legislative presence where even 1-2 members can effectuate a ‘merger’.
No Deadlines for the Speaker
As indicated earlier, decision on whether to disqualify a member from the House is taken by the Speaker or the Chairman. In Kihoto Hollohan, the Schedule’s Paragraph (6) granting finality of order of Speaker/Chairman was held valid. A major lacunae left by the judgement and the Tenth Schedule is an absence of a timeline to take decisions on question of disqualification. In practise, a partisan Speaker let defection petitions languish until the end of Assembly’s term. Noticing this, in a first-of-its-kind move and based on principle of quia timet, the Court in Rajendra Singh Rana briefly had stepped into Speaker’s shoe and disqualified MLAs in Uttar Pradesh.
A 2020 decision by the SC in Keisham Meghchandra Singh v. Speaker, Manipur Legislative Assembly[6] only went as far as to make Speaker bound to decide disqualification petitions within a reasonable period, preferably within three months. The three-month timeline, however, has been routinely flouted by two means: by introduction of a no-confidence motion against the Speaker or by Speaker’s inertia or both. In the 2016 decision of Nabam Rebia v. Deputy Speaker[7] the Supreme Court held that a Speaker cannot decide on the disqualification when there is a pending no-confidence motion against them.
This created a vacuum for mischief by defectors and was exploited in Maharashtra’s Shiv Sena split in 2022 when rebel camp MLAs moved no-confidence motion against the then Deputy-Speaker of the Legislative Assembly, paralyzing him from deciding on their disqualifications. The government was soon toppled and the newly elected Speaker, owing to lack of a constitutional deadline for conclude disqualification proceedings, deferred his decision. Finally, SC stepped in. It vindicated the election of the new Speaker and reaffirmed that disqualification of rebel MLAs was entirely upto the new Speaker’s decision. It was only subsequently that a deadline was set by SC to decide on the petitions.
Again, in 2023, 10 elected MLAs defected from opposition party into the ruling party. The Speaker, belonging to the ruling party, evaded action on the defection notices for seven months. In a 2025 decision, the SC gave the Speaker a three-month deadline noting that this is to counter the criticism of “operation successful, patient died”, a tacit reference to some commentaries on its verdict in Shiv Sena case. Had not been for SC’s intervention, Speaker’s inertia could have well allowed the defectors to complete their assembly terms.
Conclusion
It is not difficult to see how the two lacunae play into each other. Given a partisan Chairman/Speaker is not constitutionally bound to decide individual disqualifications anytime sooner, he can wait till an opposition party loses two-thirds of their legislative party strength, thereby breaching the threshold to officially constitute a merger or, even better, label the rebel bloc to be the ‘original party’. Using a disjunctive reading of Paragraph 4 paired with the finality attached to Chairman/Speaker’s decision, the questions of merger and originality become a plaything of his discretion.
In case the two-thirds threshold seems impossible to achieve , the erring legislators may always claim before Speaker to have never left their original party and circumvent defection, as happened in the Telangana case too with Speaker finding no evidence of defection.. Even otherwise, they can resign and return to assembly through bye-elections. It begs no telling that these lacunae and their judicial interpretations have turned India’s Tenth Schedule into a paper tiger.
Unless overhauled, the law is expected to facilitate defections well into the future.
*Sourya Gopal Mukherji, Law Student at Jindal Global Law School, O. P. Jindal Global University
[1] 1992 Supp (2) SCC 651
[2] 1994 Supp (2) SCC 641
[3] (2007) 4 SCC 270
[4] (2023) 5 SCC 697.
[5] 2022 SCC OnLine Bom 377
[6] (2020) 3 SCC 1
[7] (2016) 8 SCC 1