January 22, 2026

Anti-Defection Law Decoded The 10th Schedule, 'Merger' Rule & The Speaker's Power

Anti-Defection Law Decoded: The 10th Schedule, 'Merger' Rule & The Speaker's Power description: "The definitive guide to the Anti-Defection Law (10th Schedule). Understand the grounds for disqualification, the '2/3rd Merger' exception, the role of the Speaker as a Tribunal, and landmark judgments like Kihoto Hollohan and the Maharashtra Crisis." date: 2026-01-13 author: Civics Desk | Sansad Online tags: [Anti-Defection Law, 10th Schedule, 52nd Amendment, 91st Amendment, Kihoto Hollohan, Whip, Merger Rule, Disqualification, Speaker Tribunal, Horse Trading]

🐴 Parliament 101: Anti-Defection Law (The Fence)

The Loyalty Test

Can an MP change their jersey after the match starts?

  • Constitutional Basis: 10th Schedule (Added by 52nd Amendment, 1985).
  • Key Concept: Disqualification for switching parties.
  • The Judge: The Speaker / Chairman.
  • The Exception: Merger (If 2/3rd members leave together).
  • Motto: "Political Morality over Personal Ambition."
🏛️ THE "AAYA RAM GAYA RAM" STORY: In 1967, a Haryana MLA named Gaya Lal changed his party three times in a single fortnight. He went from Congress to United Front, back to Congress, and back to United Front. When he returned to Congress (briefly), a leader presented him to the press saying "Gaya Ram is now Aaya Ram." This farce forced Parliament to finally pass the Anti-Defection Law in 1985.

Introduction: Why Do We Need This Law?

(Stability vs. Freedom)

In a parliamentary democracy, the Government survives only as long as it has a majority in the House. If 10 MPs suddenly take money and switch sides, the government falls. This leads to "Horse Trading" (buying MPs) and constant elections.

The 10th Schedule was designed to stop this. It says: If you were elected on the ticket of Party A, you must stay with Party A. If you leave, you lose your seat.

However, critics say this law kills the MP's freedom. An MP becomes a "slave" to the Party High Command. Even if the Party Leader takes a decision that hurts the MP's constituency, the MP must vote for it, or get disqualified.

This guide explains the complex rules of disqualification, the "Merger" loophole that destroyed the opposition in states like Goa and Maharashtra, and the Supreme Court's struggle to tame biased Speakers.

🚫 Part 1: Grounds for Disqualification (How to Lose Your Seat)

According to Paragraph 2 of the 10th Schedule, an MP/MLA can be disqualified on two major grounds:

1. Voluntarily Giving Up Membership

  • Obvious Case: An MP sends a resignation letter to the Party President and joins another party.
  • Implied Case: An MP doesn't formally resign but acts against the party.
    • Example: If a Congress MP campaigns for a BJP candidate in an election, the Supreme Court (Ravi Naik case) says this counts as "voluntarily giving up membership" through conduct. You don't need a formal letter.

2. Voting Against the Whip

  • The Whip: A written order by the party telling MPs how to vote on a Bill.
  • The Offense: If an MP votes against the whip or abstains from voting without permission.
  • The Pardon: The party can forgive the MP within 15 days. If they don't, the MP is disqualified.

3. Special Rules for Others

  • Independent Members: If an Independent MP (elected without a party) joins any political party after the election, they are disqualified.
  • Nominated Members: They have 6 months to join a party. If they join after 6 months, they are disqualified.

🤝 Part 2: The "Merger" Exception (The 2/3rd Rule)

This is the biggest loophole used today.

Old Law (Pre-2003): The "Split"

Originally, if 1/3rd of MPs left the party, it was called a "Split" and was legal.

  • Result: MPs would defect in groups of 1/3rd to avoid disqualification.

New Law (91st Amendment, 2003): The "Merger"

To tighten the law, Parliament removed the "Split" provision. Now, only a Merger is allowed.

  • The Rule: Disqualification does not apply if:
    1. The Original Political Party merges with another party.
    2. AND at least 2/3rd of the MPs of that party agree to the merger.
  • Real-World Example (Goa Congress Crisis): In 2019, 10 out of 15 Congress MLAs in Goa (i.e., 66.6%) joined the BJP. Since 10 is exactly 2/3rd of 15, they claimed it was a "Merger" and the Speaker allowed it. They kept their seats.

⚖️ Part 3: The Role of the Speaker (The Biased Umpire?)

The 10th Schedule says the Speaker's decision is final.

  • The Problem: The Speaker is usually a member of the Ruling Party.
  • The Tactic:
    • If an Opposition MP defects to the Ruling Party, the Speaker often delays the decision for years (Pocket Veto), allowing the defector to complete their term.
    • If a Ruling Party MP defects to the Opposition, the Speaker disqualifies them in 24 hours.

Landmark Judgment: Kihoto Hollohan vs Zachillhu (1992)

The Supreme Court ruled:

  1. The Speaker acts as a Tribunal.
  2. Their decision is NOT immune from judicial review.
  3. However, Courts can intervene only after the Speaker passes an order (not while proceedings are pending).

The "Reasonable Time" Judgment (Keisham Meghachandra, 2020)

The SC ruled that Speakers cannot sit on petitions forever. They must decide within a "Reasonable Time" (ideally 3 months). But without a strict law, Speakers still delay.

🌪️ Part 4: The "Resignation" Bypass (The Karnataka Model)

Politicians found a way to bypass the Anti-Defection Law entirely.

  1. The Scenario: Party A has a majority of 5 seats. Party B wants to topple them.
  2. The Deal: Party B convinces 10 MLAs of Party A to resign.
  3. The Resignation: The MLAs don't "defect" (which takes time to adjudicate). They simply Resign from the Assembly.
  4. The Result: The total strength of the House drops. Party A loses its majority. The Government falls.
  5. The Reward: The resigned MLAs contest the Bye-Election on Party B's ticket and become Ministers in the new government.

This "Topple-Resign-Reelect" model renders the 10th Schedule useless because you can't disqualify someone who has already resigned.

⚔️ Part 5: The Maharashtra Crisis (Shiv Sena Split)

In 2022, the Shiv Sena split into two factions (Uddhav vs Eknath Shinde). This led to a constitutional crisis.

The Subhash Desai Judgment (2023)

The Supreme Court clarified two vital points:

  1. Legislative Party vs Political Party: The "Legislature Party" (MLAs) cannot disconnect itself from the "Political Party" (Organizational Wing). The Whip is appointed by the Political Party, not just the MLAs.
  2. Speaker's Duty: When deciding who the "Real" party is, the Speaker cannot just count heads in the Assembly (Legislative Majority). They must look at the Party Constitution and the organizational structure.

📜 The 91st Amendment (2003): Limiting the Jumbo Cabinet

To stop MPs from defecting just to become Ministers, this amendment added Article 75(1A):

  • The Cap: The total number of Ministers (including PM/CM) cannot exceed 15% of the total strength of the Lok Sabha/Assembly.
  • The Penalty: A defector disqualified under the 10th Schedule cannot be appointed as a Minister until they are re-elected.

❓ Frequently Asked Questions (FAQs)

Q1. Can an expelled member start their own party?

No.

  • If a party Expels an MP, the MP becomes an "Unattached Member" in the House. They do not lose their seat.
  • However, they are still bound by the Whip of their old party (ironically). If they vote against the old party's whip, they can be disqualified. This forces expelled members to obey the party that kicked them out! (SC is currently reviewing this absurdity in the Amar Singh case).

Q2. Does the law apply to Rajya Sabha?

Yes.

  • It applies to both Houses of Parliament and State Assemblies/Councils.

Q3. Can the Court decide a disqualification case?

Not directly.

  • The Court can only review the Speaker's decision. It cannot replace the Speaker and decide the case itself (though in the Manipur case, the SC invoked Article 142 to remove a Minister when the Speaker refused to act for 3 years).

Q4. Is the Speaker bound by the Election Commission's advice?

No.

  • For "Office of Profit" disqualification (Article 102), the President decides on ECI's advice.
  • For "Defection" disqualification (10th Schedule), the Speaker decides alone. ECI has no role.

Q5. What is the solution to Speaker's bias?

The Law Commission and the Supreme Court have suggested taking the power away from the Speaker and giving it to an Independent Tribunal headed by retired judges. But no political party wants to give up this power.

Bookmark this page. The 10th Schedule was meant to be a fence, but politicians have turned it into a revolving door.