Anti-defection law: Supreme Court ready to hear plea for its interpretation
The Supreme Court agreed to examine a petition challenging how the "merger exception" under the Tenth Schedule (the anti-defection law) is being interpreted and applied.
A Bench observed that there are significant unresolved issues with the working of the anti-defection provisions and issued notice to the Union government, seeking its response.
The petition argues that a "deemed merger" of a legislature party should not be enough to escape disqualification unless the original political party itself has actually merged with another party.
The matter has been tagged with a separate pending case on defections in a state legislature, meaning both will likely be heard together.
No final ruling has been delivered yet; the case is at the notice stage, with a full hearing to follow.
The Tenth Schedule and Anti-Defection Law
The Tenth Schedule was inserted into the Constitution by the 52nd Constitutional Amendment Act, 1985, to curb political defections that were causing government instability ("Aaya Ram Gaya Ram" politics). It disqualifies a member of a House who voluntarily gives up membership of their political party, or votes/abstains contrary to a party whip without prior permission (unless condoned within 15 days).
Key Details
- Inserted by the 52nd Amendment Act, 1985, under Article 102(2) (Parliament) and Article 191(2) (state legislatures).
- The Speaker/Chairman of the House is the deciding authority on disqualification petitions (Paragraph 6).
- The 91st Constitutional Amendment Act, 2003 deleted the earlier "split" exception (Paragraph 3, which had allowed a one-third split of a legislature party to escape disqualification), leaving the merger exception (Paragraph 4) as the primary route by which defecting legislators avoid disqualification today.
The current petition targets exactly this surviving merger exception, arguing it is being used as a backdoor to defeat the law's original purpose by treating a two-thirds faction's move as a "deemed merger" even when the original party has not merged.
The Merger Exception (Paragraph 4) and Judicial Review
Paragraph 4 of the Tenth Schedule protects members from disqualification if their original political party merges with another party and at least two-thirds of the members of the legislature party concerned have agreed to the merger. The question now before the Court is whether this two-thirds threshold, applied only to the legislature party, can substitute for an actual merger of the parent political party.
Key Details
- In Kihoto Hollohan v. Zachillhu (1992 Supp (2) SCC 651), the Supreme Court upheld the constitutional validity of the Tenth Schedule but held that the Speaker's decision on disqualification is a quasi-judicial function, subject to judicial review on grounds of mala fide, perversity, or violation of constitutional mandate.
- The same judgment struck down Paragraph 7 of the Tenth Schedule (which had barred court jurisdiction over such matters) for not being ratified by state legislatures as required for changes affecting the judiciary under the proviso to Article 368(2).
- A two-thirds majority of the legislature party is the statutory threshold under Paragraph 4 for the merger exception to apply.
Because Kihoto Hollohan already established that Speaker decisions and the Tenth Schedule's application are open to judicial scrutiny, the present case gives the Supreme Court an opportunity to authoritatively settle what "merger" requires — whether it must be a merger of the original party as a political entity, or can be satisfied merely by two-thirds of the legislature party changing allegiance.
- Tenth Schedule inserted by the 52nd Amendment Act, 1985.
- Merger exception threshold: two-thirds of the legislature party (Paragraph 4).
- Split exception (one-third, Paragraph 3) was removed by the 91st Amendment Act, 2003.
- Kihoto Hollohan v. Zachillhu, decided in 1992, remains the leading precedent on anti-defection law's constitutionality and judicial review.