Split in legislature party does not amount to split in political party, Shiv Sena (UBT) tells Supreme Court
The Supreme Court heard arguments on whether a split among a party's elected legislators, without a corresponding change in the underlying political party's own organisational structure, satisfies the Tenth Schedule's requirements for protection against disqualification
It was contended before the Court that a legislature party — the elected members sitting in a House — cannot on its own claim to have effected a "merger" of the original political party under Paragraph 4 of the Tenth Schedule; only the political party organisation can do so
The Court had earlier indicated that a political party retains continuing control over its legislature party, so that a decision taken by the party organisation would prevail over a position adopted by a majority of its members within the House
The hearing forms part of pending proceedings challenging the recognition of certain legislators as having merged with another party, and a related challenge to a Speaker's earlier refusal to disqualify legislators under the anti-defection law
The Tenth Schedule — From "Split" to "Merger" Only (52nd and 91st Amendments)
The Tenth Schedule was inserted by the 52nd Constitutional Amendment Act, 1985, to curb political defections by disqualifying legislators who voluntarily give up membership of their party or vote against party directions (whip) without prior permission. As originally enacted, Paragraph 3 allowed a "split" defence: a legislator escaped disqualification if at least one-third of the legislature party split away together. This split defence was misused to engineer defections and was deleted by the 91st Constitutional Amendment Act, 2003, leaving Paragraph 4's merger defence as the sole exception.
Key Details
- Paragraph 4(1) protects a member from disqualification where the member's "original political party" merges with another party
- Paragraph 4(2) specifies that such a merger is deemed to have taken place only if not less than two-thirds of the members of the legislature party concerned have agreed to it
- The interpretive dispute in such cases is whether the two-thirds legislature party agreement and an actual merger of the political party organisation are independent conditions or whether the two-thirds vote is contingent on the party organisation itself first merging
- The 91st Amendment also capped the size of the Council of Ministers at 15% of a House's total membership (Articles 75(1B) and 164(1A)) and barred defectors from holding ministerial or remunerative political office until re-elected (Article 361B)
The current dispute turns precisely on this interpretive question — whether a legislature party can independently trigger the Paragraph 4 merger defence through an internal two-thirds vote, or whether Paragraph 4 requires the "original political party" as an organisational entity to have merged first, with the legislature party vote only ratifying that merger.
Kihoto Hollohan v. Zachillhu (1992) — Constitutional Validity and Limited Judicial Review
In Kihoto Hollohan v. Zachillhu (1992), a five-judge Constitution Bench of the Supreme Court, by a 3:2 majority, upheld the constitutional validity of the Tenth Schedule, including the Speaker's or Chairman's power under Paragraph 6 to decide disqualification questions. The Court held that this adjudicatory function is that of a quasi-judicial tribunal, making the Speaker's decision subject to judicial review, but only after a final order is passed and only on limited grounds such as mala fides, perversity, or violation of natural justice.
Key Details
- The judgment established that courts cannot interfere with disqualification proceedings mid-way, only after the Speaker's final decision
- In Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly (2020), the Supreme Court criticised prolonged delays by Speakers in deciding disqualification petitions and recommended that Parliament consider replacing the Speaker with an independent tribunal, headed by a retired judge, as the adjudicating authority
- The Speaker's dual role as a member of a political party and as the constitutional adjudicator of defection disputes has remained a recurring point of judicial concern
Any Supreme Court determination on whether a purported merger satisfies Paragraph 4 will itself be a form of judicial review of the adjudicating authority's application of the Tenth Schedule, the scope of which was defined in Kihoto Hollohan.
Legislature Party vs Political Party — A Foundational Distinction in the Tenth Schedule
Paragraph 1 of the Tenth Schedule defines "legislature party" as the group of all elected members of a House belonging to one political party at the time the Schedule applies to them. This is distinct from the "original political party," which refers to the party's organisational structure outside the legislature — its office-bearers, membership, and internal decision-making bodies, typically registered with the Election Commission of India under the Election Symbols (Reservation and Allotment) Order, 1968.
Key Details
- The Election Commission of India separately adjudicates disputes over which faction represents the "real" political party for purposes of the party's name and symbol, distinct from the Speaker's role in deciding individual member disqualification
- A defection analysis therefore proceeds on two potentially separate tracks: recognition of a faction as the party by the Election Commission, and disqualification of individual legislators by the Speaker under the Tenth Schedule
- Courts have differed on the extent to which the Election Commission's or Speaker's findings on one question bind the other
The core legal question — whether a split confined to elected legislators can, by itself, be treated as equivalent to a split or merger of the political party's organisational structure — engages this very distinction between the legislature party and the original political party.
- Tenth Schedule inserted: 52nd Constitutional Amendment Act, 1985
- Split defence (Paragraph 3, one-third threshold) deleted by: 91st Constitutional Amendment Act, 2003
- Merger defence threshold under Paragraph 4(2): not less than two-thirds of the legislature party
- Kihoto Hollohan v. Zachillhu: decided 1992, by a 3:2 majority of a five-judge bench
- Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly: decided 2020, recommended an independent tribunal to replace the Speaker as adjudicator
- Council of Ministers size cap introduced by the 91st Amendment: 15% of total House membership