Author: Suhani Arora
College: SVKM’s NMIMS, School of Law, Mumbai
LinkedIn: https://www.linkedin.com/in/suhani-arora-a62902257
To the Point
In 1967, a Haryana MLA named Gaya Lal switched parties three times in a single day. The line coined to describe him, “Aya Ram, Gaya Ram,” is still in use almost sixty years later, which says something about how little the underlying problem has changed. Governments in Karnataka, Madhya Pradesh, Maharashtra, Goa, and Telangana have all fallen or nearly fallen in the last decade because of coordinated legislator defections, and each time the same question resurfaces: does the Tenth Schedule actually stop this, or has it just changed the paperwork required to do it?
The Tenth Schedule was inserted into the Constitution through the 52nd Amendment in 1985, after nearly two decades of failed attempts to legislate against floor-crossing. It disqualifies a member for voluntarily giving up party membership or defying a party whip without permission. What it has never fully solved is the incentive underneath: legislators still find it worth their while to switch sides, because the law punishes how they switch, not why.
Use of Legal Jargon
Defection is an elected member abandoning the party they were elected on, either openly or through conduct that shows the same thing.
Political horse-trading isn’t a term the Constitution defines. It’s shorthand for legislators being persuaded to shift allegiance through promises of ministerial office, money, or other inducements, in a way that changes who holds power without the voters having any say in it.
Whip is a written instruction from a party telling its legislators how to vote on a specific matter; ignoring it without permission can trigger disqualification.
Split and merger are two different exits under the Tenth Schedule. The split exception, which once protected a breakaway group of one-third of a party’s legislators, was deleted by the 91st Amendment in 2003 after it was used to legitimise organised defections. The merger exception survives: if two-thirds of a party’s legislative wing agrees to join another party, none of them is disqualified.
Quasi-judicial authority refers to the Speaker’s role in deciding disqualification petitions. The Speaker isn’t a judge, but functions like one for this purpose, weighing evidence and issuing a reasoned order.
Judicial review is the power of the High Courts and Supreme Court to examine whether the Speaker’s order was fair, or whether it was delayed, biased, or passed without following basic procedure.
The Proof
Where the Law Came From
The Tenth Schedule wasn’t drafted in a vacuum. Between the first general election in 1951 and the fourth in 1967, 542 MLAs switched parties. In the twelve months after that 1967 election alone, there were 438 such defections, the numbers come from the report of the Y.B. Chavan Committee, set up by the government in 1967 and chaired by the then Union Home Minister, specifically to study this. The committee found that “the lure of office played a dominant part” in these decisions: of 210 defecting legislators across seven states, 116 walked straight into ministerial berths in the governments their defection had helped create. Two legislative attempts to act on the committee’s findings, in 1973 and 1978, both collapsed before they became law. It took the Congress party’s landslide win in 1985, after Indira Gandhi’s assassination, to finally get the numbers in Parliament to pass the 52nd Amendment.
What Happens Now
The pattern the Chavan Committee documented in the 1960s hasn’t disappeared; it has just changed shape.
Goa, 2019: ten of the Congress party’s fifteen MLAs crossed to the BJP on a single day, structured as a merger to clear the two-thirds threshold. The Congress organisation outside the Assembly was left completely untouched, only the elected wing moved.
Karnataka, 2019: seventeen Congress and JD(S) MLAs resigned days before a scheduled confidence vote, bringing down H.D. Kumaraswamy’s government. The Speaker disqualified them, but the Supreme Court let them contest the resulting bye-elections; most won on BJP tickets and several were made ministers within weeks, which rather defeated the point of disqualifying them in the first place.
Madhya Pradesh, 2020: twenty-two Congress MLAs led by Jyotiraditya Scindia resigned as a bloc, taking down the Kamal Nath government within a fortnight of the Karnataka episode.
Maharashtra, 2022: a majority of Shiv Sena’s own MLAs, led by Eknath Shinde, left the state for Surat and then Guwahati before returning to form a government with BJP support. The fight over which faction is the “real” Shiv Sena has occupied the Supreme Court for over four years; petitions arising from the Speaker’s January 2024 ruling were still being heard as recently as August 2026.
Telangana, 2024–25: BRS MLAs who defected to the ruling Congress after losing power had disqualification petitions pending before the Speaker for close to a year with no decision. The Supreme Court intervened in 2025, gave the Speaker a hard three-month deadline, and said plainly that this kind of delay defeats the entire purpose of the Tenth Schedule.
The common thread across sixty years is scale and timing. Legislators move in blocs large enough to claim the merger exemption, or resign collectively to force fresh elections rather than face a whip, and the person deciding their fate belongs to the same political system they’re defecting within or against.
The Constitutional Framework
The legal basis for all of this sits in Articles 102(2) and 191(2) of the Constitution, read with the Tenth Schedule. Article 102(2) disqualifies Members of Parliament; Article 191(2) does the same for state legislators. Paragraph 2 of the Schedule sets out the actual grounds: voluntarily giving up party membership, voting or abstaining against a whip without permission, an independent member joining a party after election, or a nominated member joining one more than six months after taking their seat.
The phrase “voluntarily giving up membership” is doing a lot of work in that list, and the Supreme Court has read it broadly. A member doesn’t need to hand in a resignation letter, public statements, sharing a platform with a rival party, or campaigning against their own can be enough to show, in substance, that they’ve already left. Paragraph 4 carries the sole surviving exception: two-thirds of a legislature party merging into another party escapes disqualification altogether, on the theory that this reflects a genuine political realignment rather than an opportunistic exit. Goa’s 2019 defection shows exactly how that theory breaks down in practice.
The Role of the Speaker
Every disqualification petition under the Tenth Schedule lands on the desk of the Speaker of the House, or the Chairman in the Rajya Sabha and Legislative Councils. This is the law’s most argued-over feature, for an obvious reason: the person deciding whether a government has lost its majority is, almost always, a member of the party running that government, or at least someone who owes their office to it.
Two problems follow from this. The first is bias, or at least the appearance of it, a Speaker has no real incentive to disqualify defectors who are propping up a government they’re aligned with, and every incentive to move quickly against defectors who are undermining one. The second is delay, which the Tenth Schedule does nothing to prevent because it sets no deadline at all. Telangana’s BRS petitions sat for almost a year. The Manipur case that reached the Supreme Court in 2020 involved a similar stretch. Delay isn’t a side effect of an overloaded Speaker’s office; in most of these cases it has worked in favour of whichever side benefited from the defection being left unresolved.
Has It Worked?
Judged against its narrowest goal, stopping an individual legislator from quietly switching parties for a ministerial berth, the Tenth Schedule has worked reasonably well. Overt, one-off floor-crossing of the kind Gaya Lal became famous for is rare today.
Judged against the wider goal of protecting the voter’s mandate, the record is weaker. The law has pushed defection into forms it wasn’t built to catch cleanly: bloc mergers big enough to clear two-thirds, coordinated resignations that force fresh elections rather than trigger disqualification, and Speakers who simply wait. There’s also a cost on the other side that gets less attention, because the whip applies to almost any vote, not just confidence motions, legislators who might genuinely disagree with their party on an ordinary bill have little room to say so without risking their seat. A law built to stop opportunism has, in the process, narrowed how much independent judgment a sitting legislator is allowed to exercise.
Abstract
The Tenth Schedule was Parliament’s answer to a specific historical problem: hundreds of legislators switching parties in the years after the 1967 election, most often for ministerial reward, as the 1969 Chavan Committee report documented in detail. The 52nd Amendment tried to fix this by disqualifying members who defect or defy a whip, while carving out room for genuine mergers. The Supreme Court upheld the law in Kihoto Hollohan v. Zachillhu but made the Speaker’s decisions reviewable by courts, since a Speaker drawn from party politics cannot always be trusted to referee it fairly. What has followed is four decades of courts patching individual loopholes, clarifying what “voluntarily giving up membership” means, urging deadlines Parliament never wrote into the law itself, and increasingly questioning whether the Speaker should hold this power at all. This article traces that history, checks it against real defection episodes from Goa to Telangana, and asks whether the fix recommended since 1999 is ever going to happen.
Case Laws
1. Kihoto Hollohan v. Zachillhu, 1992 SCR (1) 686
The Constitution Bench upheld the Tenth Schedule 3:2, but struck down the part of it that tried to keep the Speaker’s decision outside the reach of the courts. Judicial review, the majority said, is part of the basic structure and can’t be excluded by amendment. Every defection dispute since has ridden on this one point.
2. Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641
A member doesn’t need to resign on paper to be disqualified. If their conduct shows they’ve abandoned the party in substance, that’s enough.
3. G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) 2 SCC 353
Once a party expels a member, that member doesn’t become a free agent. For the Tenth Schedule, they’re still treated as belonging to the party that put them up, so joining a rival party still triggers disqualification.
4. Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270
Rather than send the matter back, the Supreme Court disqualified the UP MLAs itself, after finding the Speaker’s order was arbitrary and effectively designed to protect them.
5. Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1
A Speaker facing a resolution for his own removal can’t simultaneously rule on disqualification petitions against the same MLAs pushing for that removal — the conflict of interest is too direct.
6. Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, 2020 SCC OnLine SC 55
The Court said, in effect, enough that speakers sitting on petitions for years was gutting the law’s purpose, and recommended a three-month norm along with an independent tribunal to take the decision away from the Speaker entirely.
7. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 SCC OnLine SC 607
Deciding the Shiv Sena split, the Constitution Bench held that legislative strength inside the House cannot by itself decide which faction is the “real” party, that question has to be settled through the Tenth Schedule’s own machinery, not just by counting numbers on the floor.
8. Padi Kaushik Reddy v. State of Telangana (2025)
Facing a Telangana Speaker who hadn’t acted on BRS defection petitions in nearly a year, the Court imposed a firm three-month deadline and reiterated that Speakers get no immunity from scrutiny for sitting on a case.
Conclusion
The Tenth Schedule has done one thing well: it made individual, opportunistic floor-crossing expensive. It has done far less to stop organised, bloc-scale defection, because the exemptions and the adjudicator were both built around the assumption that the Speaker would act like a neutral referee, an assumption Indian politics has never really tested honestly.
The fix has been on the table since 1999. The Law Commission’s 170th Report, repeated in its 255th Report in 2015, recommended stripping the Speaker of this power and handing it to the President or Governor acting on the Election Commission’s binding advice, the same model already used for office-of-profit disqualification. A narrower fix, limiting the whip to confidence votes and money bills so ordinary legislative debate isn’t chilled by the fear of disqualification, has also been floated by constitutional scholars for years. The Supreme Court itself pushed for an independent tribunal in 2020. None of this has been enacted. Until something is, the pattern documented above, mergers engineered to clear two-thirds, mass resignations timed to dodge a whip, Speakers who take their time when it suits the ruling party, isn’t a bug in the system. It’s what the system currently rewards.
FAQ
Q1. What exactly triggers disqualification under the Tenth Schedule?
Voluntarily giving up membership of the party you were elected on, voting or abstaining against your party’s whip without permission, an independent member joining a party after election, or a nominated member joining one more than six months after taking their seat.
Q2. Why does a two-thirds merger escape disqualification when smaller splits don’t?
The threshold was meant to separate genuine political realignment from opportunism. In practice, only the legislative wing needs to hit two-thirds, not the party’s full organisational base, which is exactly why Goa’s 2019 defection could be dressed up as a merger even though the Congress party structure outside the Assembly never moved.
Q3. Can the Speaker’s decision be challenged in court?
Yes, since Kihoto Hollohan. Courts can step in if the decision shows mala fide intent, procedural unfairness, or a violation of constitutional principles, but they generally won’t second-guess the Speaker’s reading of the facts unless one of those flaws is present.
Q4. Why do Speakers take so long to decide these cases?
Because the Tenth Schedule doesn’t fix a deadline. Courts have kept telling Speakers to decide within roughly three months, most recently in the 2025 Telangana case, but that’s a judicial recommendation, not a binding statutory limit, so nothing stops a Speaker inclined to stall.
Q5. What would actually fix this?
Take the decision away from the Speaker. Both Law Commission reports and the Supreme Court’s own suggestion in Keisham Meghachandra point the same way: either the President or Governor acting on binding ECI advice, or an independent tribunal led by a retired judge. Parliament has not moved on either.
