Anti-Defection Law in India — The Tenth Schedule, Disqualification, and the Speaker's Role

Advocate Akhil Singh anti-defection lawtenth schedulekihoto hollohanconstitutional lawdisqualificationspeakerelection commissionlucknowuttar-pradeshindia

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

The Tenth Schedule — inserted by the Constitution (Fifty-Second Amendment) Act, 1985 — provides for the disqualification of Members of Parliament and State Legislatures on grounds of defection. This article explains the grounds of disqualification, the procedure before the Speaker or Chairperson, the constitutional safeguards in Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, and the effect of the 91st Amendment (2003) which deleted the “one-third split” exception and retained only the two-thirds merger exception.

Constitutional Framework

Articles 102(2) and 191(2) of the Constitution provide that a person shall be disqualified for being a Member of Parliament or a State Legislature, respectively, if so disqualified under the Tenth Schedule. The Tenth Schedule itself contains the substantive grounds and procedure.

The Tenth Schedule applies to members of:

  • Both Houses of Parliament — Lok Sabha and Rajya Sabha;
  • The Legislative Assembly of every State and Union Territory; and
  • The Legislative Council where one exists.

Grounds of Disqualification — Paragraph 2

Paragraph 2 of the Tenth Schedule lays down the grounds on which a member is disqualified for defection. These differ depending on whether the member belongs to a political party, is an independent, or is a nominated member.

Members Belonging to a Political Party — Paragraph 2(1)

A member of a House belonging to any political party is disqualified if:

(a) He has voluntarily given up his membership of such political party; or

(b) He votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs, or by any person or authority authorised by it in this behalf, without obtaining prior permission of such political party, person, or authority, and such voting or abstention has not been condoned by the political party, person, or authority within fifteen days.

Independent Members — Paragraph 2(2)

An independent member is disqualified if he joins any political party after his election.

Nominated Members — Paragraph 2(3)

A nominated member is disqualified if he joins any political party after the expiry of six months from the date he takes his seat. Within the six-month period, a nominated member may join a political party without attracting disqualification.

”Voluntarily Giving Up Membership” — Wider Than Resignation

The expression “voluntarily given up his membership” is wider than formal resignation. In Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641, the Supreme Court held that voluntary giving up of membership may be inferred from the conduct of the member. Acts such as publicly supporting a rival party, attending the rallies of another party, or joining a rival party — even without a formal resignation letter — can be sufficient to attract disqualification under Paragraph 2(1)(a).

In Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270, the Court reiterated that any act inconsistent with continued membership of the party — including writing to the Governor in support of forming an alternative government — can amount to voluntary relinquishment.

Exception — Merger Under Paragraph 4

Paragraph 4 of the Tenth Schedule provides an exception to disqualification where there has been a merger of the original political party with another political party. The merger is deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

In such a case:

  • The members who agree to the merger are not disqualified.
  • Those who do not agree, and choose to function as a separate group, are also not disqualified.

The “two-thirds for merger” rule applies to the legislature party — i.e., the members of the political party in the relevant House — and not to the political party as a whole. This is a critical distinction in modern practice: defections in the State Assemblies of Goa, Karnataka, Maharashtra, and Madhya Pradesh have frequently turned on whether the breakaway group satisfies the two-thirds threshold.

The 91st Amendment — Deletion of the “Split” Provision

As originally enacted, Paragraph 3 of the Tenth Schedule provided an exception for a “split” in the original political party where at least one-third of the members of the legislature party formed a separate group. The “one-third split” exception was widely misused — groups of one-third or more would break away to topple governments and avoid disqualification.

The Constitution (Ninety-First Amendment) Act, 2003 deleted Paragraph 3 altogether. After the 91st Amendment:

  • A split is no longer a defence to disqualification.
  • Only a merger satisfying the two-thirds threshold under Paragraph 4 protects defecting members.
  • Members who incur disqualification under the Tenth Schedule are also barred from being appointed as a Minister or holding any remunerative political post until they are re-elected or the term of the House expires (Article 75(1B), 164(1B), and 361B).

Speaker / Chairperson as the Adjudicating Authority

Paragraph 6 of the Tenth Schedule vests the power to decide disqualification questions in the Speaker of the House (or the Chairperson, in the case of the Rajya Sabha and Legislative Councils). The decision of the Speaker is “final” — subject, however, to judicial review.

The Constitution Bench Decision — Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651

A five-Judge Bench of the Supreme Court in Kihoto Hollohan upheld the constitutional validity of the Tenth Schedule. The Court made several important holdings:

  1. The Speaker acts as a Tribunal — when adjudicating disqualification questions, the Speaker discharges quasi-judicial functions and is amenable to judicial review.
  2. Judicial review is limited but available — the High Courts and the Supreme Court may interfere with the Speaker’s decision on grounds of mala fides, perversity, violation of constitutional mandates, or non-compliance with rules of natural justice.
  3. Paragraph 7 (which originally barred judicial review of the Speaker’s decision) was struck down as unconstitutional for failing to comply with the proviso to Article 368(2), which requires ratification by States for amendments affecting the powers of the High Courts.
  4. The vote in the House triggering disqualification is independent of the disqualification decision — the Court does not stay proceedings of the House.

In Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, (2020) 4 SCC 88, the Supreme Court expressed serious concern about delays by Speakers in deciding disqualification petitions. The Court directed that Speakers should decide such petitions within a “reasonable period,” generally taken to be three months, except in extraordinary circumstances. The Court also suggested that Parliament reconsider whether the Speaker — a person who continues to belong to a political party — is the appropriate forum to adjudicate disqualification questions, and proposed a permanent independent Tribunal as a potential alternative.

Procedure Before the Speaker

The detailed procedure is prescribed by the Rules made by each House under Paragraph 8 of the Tenth Schedule. The common framework is:

  1. A member of the House files a petition before the Speaker / Chairperson alleging disqualification of another member.
  2. The petition must be accompanied by an affidavit verifying the facts.
  3. The Speaker / Chairperson issues notice to the member concerned and gives him an opportunity to submit a written response.
  4. The Speaker may direct a preliminary inquiry — usually by the Secretariat of the House — to determine whether the petition discloses a prima facie case.
  5. Both sides are heard. Documentary and oral evidence may be led.
  6. The Speaker pronounces a reasoned order.
  7. The order is amenable to writ jurisdiction under Articles 226 and 32.

Effect of Disqualification

A member who is disqualified under the Tenth Schedule:

  • Ceases to be a member of the House from the date of the Speaker’s order (or, in cases where the Court holds that disqualification operated from an earlier date, from that date);
  • Is barred from being appointed as a Minister or holding any remunerative political post until re-elected or until the term of the House expires (Articles 75(1B), 164(1B), 361B inserted by the 91st Amendment);
  • Vacates the seat, which may then be filled through a by-election.

Judicial Review — Boundaries

Although the Speaker’s decision is amenable to judicial review, the scope is limited. In Kihoto Hollohan, the Supreme Court held that courts will interfere only where:

  • The Speaker has acted in violation of constitutional mandates;
  • The decision is vitiated by mala fides;
  • The decision is perverse — i.e., based on no evidence or against the weight of evidence;
  • There has been a violation of natural justice;
  • There has been a non-compliance with the rules of procedure framed under Paragraph 8.

Courts do not sit in appeal over the Speaker’s findings of fact or substitute their own view for that of the Speaker.

Practical Issues in Contemporary Practice

Several recurring issues have shaped the working of the Tenth Schedule:

  • Delay by Speakers — in some States, disqualification petitions have remained pending for months or even years, often coinciding with critical floor tests. Keisham Meghachandra Singh attempted to remedy this by prescribing a three-month outer limit.
  • Resignation strategy — members may resign before disqualification is decided, contest by-elections under a new party, and return to the House without ever being formally disqualified. The 91st Amendment’s bar on holding remunerative political posts until re-election was designed to deter this, but it has not eliminated the practice.
  • Whip-related disputes — disputes over whether a valid whip was issued, by an authorised person, and whether it was duly communicated.
  • Ministerial decisions and floor tests — the timing of disqualification proceedings often interacts with no-confidence motions and floor tests, raising questions about the order in which the Speaker should act.

Practical Takeaways

  • The Tenth Schedule disqualifies legislators on two principal grounds: voluntary giving up of party membership, and voting (or abstaining) contrary to a whip without permission or condonation.
  • The “voluntarily giving up” ground is inferred from conduct — formal resignation is not required.
  • After the 91st Amendment, only a merger involving two-thirds of the legislature party protects defectors; the earlier “one-third split” defence is gone.
  • The Speaker / Chairperson is the adjudicating authority, but the decision is subject to judicial review on limited grounds.
  • Disqualified members lose their seat and are barred from ministerial or remunerative political posts until re-elected.

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Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.

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