Author: Sharanya Das
College: Symbiosis Law School, Pune
To the Point
The Tenth Schedule entered the Constitution through the Constitution (Fifty-second Amendment) Act, 1985, as Parliament’s answer to a problem that had embarrassed Indian democracy since the 1967 general elections. In that period legislators changed sides so freely, and governments collapsed so quickly, that the phrase “Aya Ram, Gaya Ram” became shorthand for opportunistic floor-crossing. The Schedule proceeds on a simple premise: a member is elected on the strength of a party ticket and a manifesto, and therefore owes fidelity to both. A member who abandons the party, or defies its direction in the House, forfeits the seat.
The real difficulty lies not in the rule but in the person who applies it. Paragraph 6 places every disqualification question before the Speaker or Chairman of the House, an office-holder who usually belongs to the ruling party and owes his position to the majority. Petitions have consequently been left to gather dust, decided selectively, or deployed to protect or topple governments. The split in the Shiv Sena in June 2022, and the Constitution Bench decision that followed in 2023, brought this structural flaw into full public view. The question now is whether the Schedule, as the courts have read it, can achieve its object without sacrificing the separation of powers, the rule of law, and free and fair democratic representation.
Use of Legal Jargon
The Tenth Schedule operates through a short list of defined grounds. Under para 2(1)(a), a member belonging to a political party is disqualified if he has “voluntarily given up” his membership of that party. Under para 2(1)(b), he is disqualified if he votes or abstains contrary to the party’s direction, commonly called the whip, without prior permission, unless the party condones the act within fifteen days. Para 2(2) reaches an independent member who joins a party after being elected, and para 2(3) reaches a nominated member who joins one after six months from taking his seat.
The Schedule once contained a safe harbour for a “split”, under which a break-away group of one-third of the legislature party escaped disqualification. The Constitution (Ninety-first Amendment) Act, 2003 deleted para 3 altogether, so that the only protection left is the merger exception in para 4. Under it, a member is spared if his original political party merges with another and at least two-thirds of the legislature party agree to the merger. The same amendment added Article 361B, which keeps disqualified members out of remunerative political office, and capped the size of the Council of Ministers at fifteen per cent of the strength of the House under Articles 75(1A) and 164(1A).
On the question of who decides, para 6(1) makes the presiding officer’s decision “final”, and para 7 originally shut out the jurisdiction of every court. In Kihoto Hollohan, the Supreme Court upheld the Schedule but struck down para 7, because an ouster of this kind curtails the jurisdiction of the Supreme Court and High Courts under Articles 136, 226 and 227 and so needed ratification by the States under Article 368(2), which had never been obtained. The Court described the Speaker, when ruling on disqualification, as a tribunal whose decision is open to judicial review for jurisdictional error: mala fides, perversity, breach of natural justice, and violation of a constitutional
mandate. Review before the final decision was confined to interlocutory orders with grave, immediate and irreversible consequences, such as an order of suspension or disqualification.
Two interpretive ideas then did much of the work. First, “voluntarily giving up membership” was held not to mean formal resignation but to be capable of inference from conduct. Second, in Subhash Desai the Court separated the political party from the legislature party, holding that the whip and the leader of the legislature party are appointed by the former and not the latter. Paragraph 8 of the Schedule, finally, lets the presiding officer frame rules to carry the scheme into effect.
The Proof
The central objection to the scheme is structural. The maxim nemo judex in causa sua, that no one may judge his own cause, is a facet of natural justice and forms part of Article 14. A Speaker is chosen by the majority in the House, normally remains a member of the party that commands it, and may depend on that majority to stay in office. When a disqualification petition will decide whether a government survives, the conflict of interest is both apparent and real. The point is not that individual Speakers lack integrity; it is that the design of the office makes an appearance of bias unavoidable. Kihoto Hollohan answered the concern by relying on the dignity of the office and the expectation of impartiality, but experience in several States has not justified that trust, and the misgivings of the two dissenting Judges, Verma and Lahoti JJ., have proved prescient. The suggestion in Keisham Meghachandra Singh that Parliament consider an independent tribunal is an implicit judicial admission of the same failure, although a suggestion of this kind binds no one.
Delay is the most effective instrument available to a Speaker who wishes to protect a defector. A petition decided after the House has completed its term becomes infructuous, and the member keeps every benefit of the defection. The three-month limit laid down in Keisham Meghachandra Singh is a judicial innovation, not a statutory rule, and it depends on courts being willing to issue mandamus against a constitutional office-holder. The absence of a statutory limitation period remains a genuine gap in the law.
The doctrine of inference from conduct, though purposive, has stretched the Schedule beyond its text. Criticism of party leadership, attendance at a rival party’s rally, or support for an opposing coalition have each been pleaded as conduct amounting to defection. This sits uneasily with freedom of speech under Article 19(1)(a), and with the fact that a legislator answers to a constituency and not only to the party high command. The contrary view, which draws on the majority in Kihoto Hollohan, holds that the Schedule regulates only a narrow field, namely defection and defiance of the whip on defined matters, and so does not offend freedom of conscience. The better position is that inference from conduct should be confined to cases showing an unmistakable abandonment of the party.
The merger exception raises a separate problem. Para 4 speaks of the original political party merging with another, yet it measures the two-thirds requirement by reference to the legislature party. This gap has been exploited by groups of legislators who claim a merger on the strength of two-thirds support in the House, with no matching merger of the organisational party. The courts have not finally decided whether an organisational merger is a necessary precondition. By treating the political party as distinct from, and superior to, the legislature party, Subhash Desai strengthens the argument that the organisational party is the primary unit.
The timing of judicial review has also produced distortions. Kihoto Hollohan allowed review only after the Speaker’s final decision, with narrow exceptions for grave interim orders. A petitioner therefore could not approach a court against a Speaker’s inaction without first showing extraordinary circumstances, and a Speaker could let a petition remain pending so that the existing position, often favourable to the sitting government, continued undisturbed. Keisham Meghachandra Singh corrected the first of these problems in part, but no comprehensive statutory remedy exists.
These defects also invite a constitutional question. The basic structure doctrine, laid down in Kesavananda Bharati, protects democracy, the rule of law and the separation of powers from amendment. A procedure that lets the presiding officer of a House decide which members may sit in that very House is arguably in tension with those features. Kihoto Hollohan rejected such a challenge, but the Court has since conceded that the mechanism is inadequate, and that record gives fresh ground for reconsideration.
Reform has been recommended repeatedly. The Dinesh Goswami Committee on Electoral Reforms (1990), the Law Commission of India in its 170th Report (1999), and the National Commission to Review the Working of the Constitution (2002) each proposed that disqualification be decided by the President or Governor on the binding advice of the Election Commission. Five measures deserve legislative attention: a permanent independent tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court; a statutory three-month limit with deemed consequences for inaction; a narrower whip, confined to votes that decide the survival of a government, such as confidence motions, no-confidence motions and money bills, as the Law Commission suggested; a statutory statement that para 4 requires both an organisational merger and two-thirds support in the legislature party; and a firmer Article 361B so that a disqualified member enjoys no office until he wins a fresh mandate.
Abstract
The Tenth Schedule pursues a legitimate aim, which is to protect the electoral mandate and keep governments stable, but it does so by concentrating a decisive power in an officer whose neutrality the system cannot guarantee. The Supreme Court upheld the Schedule in Kihoto Hollohan while striking down the ouster clause in para 7, and it treated the Speaker as a tribunal whose rulings can be reviewed for jurisdictional error. This preserved the law but left the identity of the adjudicator untouched.
Later decisions have repaired the scheme piece by piece. Ravi S. Naik and G. Viswanathan allowed defection to be inferred from conduct, Keisham Meghachandra Singh imposed a three-month norm and invited Parliament to create an independent tribunal, Shrimanth Balasaheb Patil limited the consequences of disqualification, and Subhash Desai clarified who controls the whip and who may order a floor test. Case-by-case correction, however, is no substitute for institutional redesign. The better course is an independent tribunal, a binding limitation period, a narrower whip and a codified merger test.
Case Laws
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651
A Constitution Bench, by a majority of three to two, upheld the validity of the Tenth Schedule and rejected the argument that it violated the basic structure or the legislator’s freedom of speech. Para 7 was struck down for want of ratification under Article 368(2). The Speaker was held to act as a tribunal, subject to review for mala fides, perversity, breach of natural justice and constitutional non-compliance, with pre-decision interference limited to interim orders of grave and irreversible effect. Verma and Lahoti JJ., in dissent, doubted the wisdom of entrusting this role to a presiding officer.
Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641
The Court read “voluntarily giving up membership” widely, holding that it is not the same as formal resignation and may be inferred from a member’s conduct. Members who had written to the Governor withdrawing support from their own party’s government were held to have given up membership by necessary implication.
G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) 2 SCC 353
The Court confirmed that conduct can establish voluntary relinquishment. A member elected on one party’s ticket who joined another party was held to have given up membership, even though his original party had expelled him. Expulsion does not detach a member from his party for the purposes of the Tenth Schedule.
Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270
The Court held that a Speaker could not recognise a split or merger unless the statutory requirements were met, and that his role is confined to deciding the disqualification question on facts that are pleaded and proved.
Keisham Meghachandra Singh v. Hon’ble Speaker, Manipur Legislative Assembly (21 January 2020)
The Speaker had held disqualification petitions pending for years against a member who went on to serve as a Minister. The Court ruled that a Speaker, acting in a quasi-judicial capacity, must ordinarily decide such petitions within three months, barred the member from entering the Assembly while the proceedings were pending, and recommended that Parliament consider vesting the power in an independent permanent tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court.
Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly, (2020) 2 SCC 595
The Court upheld the Speaker’s power to disqualify members who had resigned in order to destabilise a government. It nevertheless held that the Speaker could not bar them from contesting by-elections for the rest of the term, since the Tenth Schedule prescribes no such consequence. Resignation and disqualification were treated as operating in separate fields.
Subhash Desai v. Principal Secretary, Governor of Maharashtra (Constitution Bench, 11 May 2023)
Arising from the Shiv Sena split of June 2022, the five-judge Bench held that the whip and the leader of the legislature party are appointed by the political party, so the Speaker acted illegally in recognising a whip chosen by the rebel faction without asking which whip the party had authorised. The Governor, it said, had no objective material to conclude that the Chief Minister had lost the confidence of the House, because dissent within a party is not a ground for ordering a floor test under Article 174. The Court still declined to restore the earlier government, since the Chief Minister had resigned without facing the floor test. It reiterated that, after the deletion of para 3, a split in the legislature party is no defence, and referred the Nabam Rebia question to a larger Bench.
Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1
The question decided here, whether a Speaker may decide disqualification petitions while a notice of resolution for his own removal is pending, was referred by Subhash Desai to a larger Bench for reconsideration.
S.R. Bommai v. Union of India, (1994) 3 SCC 1
Relied on in Subhash Desai for the principle that the floor of the House is the only constitutionally recognised place to test a government’s majority, and that a Governor must not act on a subjective assessment.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
The source of the basic structure doctrine, which protects democracy, the rule of law and the separation of powers from constitutional amendment, and which supplies the footing for any renewed challenge to the Speaker’s adjudicatory role.
Conclusion
The Tenth Schedule is a necessary but flawed constitutional device. Its goal, to safeguard the electoral mandate and the stability of government, is sound. Its method, however, gives a decisive adjudicatory power to an officer whose neutrality cannot be built into the system. Through Kihoto Hollohan, Keisham Meghachandra Singh and Subhash Desai the Supreme Court has sealed many of the cracks, yet judicial correction case by case cannot replace institutional redesign.
Parliament should therefore act on the long-standing recommendation to move disqualification jurisdiction to an independent tribunal and to fix a binding limitation period. Until it does, the promise of a clean and accountable legislature will rest on the discretion of the very office-bearers the system is meant to restrain. A democracy governed by law cannot leave the question of who sits in the House to be answered by those whose own tenure depends on the answer.
FAQs
What is the Tenth Schedule?
It is the anti-defection law added to the Constitution by the Fifty-second Amendment in 1985. It lists the grounds on which a Member of Parliament or of a State Legislature can be disqualified for leaving, or defying, the party on whose ticket he was elected.
Who decides whether a legislator is disqualified?
Under para 6, the Speaker or Chairman of the House concerned decides. After Kihoto Hollohan, that decision can be reviewed by the courts on limited grounds.
Can a legislator be disqualified without formally resigning from the party?
Yes. Ravi S. Naik and G. Viswanathan held that voluntary giving up of membership can be inferred from a member’s conduct, so a formal resignation is not required.
Is a split in a political party protected?
No. Protection for a one-third split under para 3 was removed by the Ninety-first Amendment in 2003. The only shelter now is a merger under para 4, which needs the support of two-thirds of the legislature party.
Is the Speaker’s decision final?
Not in an absolute sense. Para 7, which tried to oust the courts, was struck down in Kihoto Hollohan, so the decision can be challenged for mala fides, perversity, breach of natural justice or jurisdictional error.
Is there a time limit within which the Speaker must decide?
The Schedule sets none. In Keisham Meghachandra Singh, however, the Supreme Court held that disqualification petitions should ordinarily be decided within three months.
What did the Supreme Court decide in Subhash Desai (2023)?
It held that the whip is appointed by the political party and not by the legislature party, that the Governor had no valid ground to order a floor test, and that the earlier government could not be restored because the Chief Minister had resigned. It also sent the Nabam Rebia question to a larger Bench.
Can a disqualified member contest a by-election?
Yes. Shrimanth Balasaheb Patil held that the Tenth Schedule does not stop a disqualified member from contesting during the remainder of the term.
