Tenth Schedule — Anti-Defection Law and Political Mergers

Why in the News? The anti-defection law continues to be circumvented through political manoeuvres — the AAP Rajya Sabha MP switch (2026) and TMC Lok Sabha MP reorganisation (2026) have reignited debate about the loopholes in Paragraph 4 (Merger) of the Tenth Schedule. Recent cases in Goa, Maharashtra (Shiv Sena), and the NCP split illustrate systematic misuse of “pseudo-merger” claims.

Background: The “Aaya Ram Gaya Ram” Culture

The term “Aaya Ram Gaya Ram” refers to the 1967 defection of Haryana MLA Gaya Lal, who changed parties multiple times in a single day — symbolising the political instability caused by horse-trading and floor-crossing. Through the 1960s and 1970s, such defections repeatedly destabilised elected state governments.

Constitutional Response: The 52nd Constitutional Amendment Act, 1985 added the Tenth Schedule to the Constitution — popularly known as the Anti-Defection Law. The law provides for disqualification of legislators who violate party discipline.

Structure of the Tenth Schedule

Provision	Content
Basic Disqualification Rule	A legislator is disqualified if they voluntarily give up party membership OR vote against the party whip (direction) in the House
Paragraph 2	Core disqualification provision — the main operative rule
Paragraph 3 (Split — NOW DELETED)	Exemption if 1/3 of legislative party splits to form a new group. Removed by 91st Constitutional Amendment, 2003 due to widespread misuse
Paragraph 4 (Merger — CURRENT LOOPHOLE)	Exemption if the original political party merges with another party AND at least 2/3 of the legislative party members support this merger
Deciding Authority	Speaker (Lok Sabha / State Assembly) or Chairperson (Rajya Sabha / State Council) — final authority on disqualification
Key Distinction	“Political Party” = entire national/state organisation \| “Legislative Party” = elected members of that party in a specific House

How Paragraph 4 (Merger) Is Being Misused

1. Pseudo-Original Party Claim

In the Shiv Sena and NCP crises (Maharashtra 2022-23), dissenting groups within the legislative party claimed to be the “real” original political party — attempting to satisfy the merger requirement without an actual party merger. This exploits the ambiguity between “political party” (the organisation) and “legislative party” (elected members in the House).

2. Bulk Defection as Pseudo-Merger

More than 2/3 of a party’s legislators in a House unite and directly join another established party — claiming this as a “merger” even when the original party’s national organisation has not merged. Documented examples: Goa (Congress MLAs joining BJP), Rajya Sabha AAP MPs, and Lok Sabha TMC MPs in 2026.

3. Legal Ambiguity in the Text

A textual reading of Paragraph 4 requires the original political party (the organisation) to merge first, followed by 2/3 of the legislative party approving the merger. In practice, courts have sometimes accepted 2/3 of legislators directly joining another party as satisfying the merger requirement — creating contradictory precedents.

4. Bombay High Court Precedent (Goa)

In 2019, the Bombay High Court upheld the merger of Congress MLAs into the BJP in Goa, even though the Congress party itself did not merge, thereby establishing a problematic precedent that several states have since replicated.

The Speaker’s Role: Constitutional Expectation vs. Political Reality

Constitutional Expectation	Ground Reality
Speaker acts as an impartial, quasi-judicial authority on disqualification petitions	Speakers are elected from the ruling party and routinely delay or decide cases favourably for the ruling dispensation
Disqualification decided on merits within a reasonable timeframe	Cases pending for years — the Nabam Rebia Supreme Court ruling (2016) held Speakers cannot act on disqualification while their own removal motion is pending
Judicial review limited to post-decision challenges	SC in K.M. Singh case (2020) strongly recommended transferring disqualification authority to an independent tribunal headed by a retired judge

Way Forward: Strengthening the Anti-Defection Framework

Remove Paragraph 4: The 1999 Law Commission report recommended complete abolition of the merger exemption — eliminating the primary legal loophole
Independent Tribunal: Supreme Court’s K.M. Singh recommendation (2020) — transfer disqualification authority from Speaker to a permanent independent tribunal headed by a retired judge; this eliminates partisan bias
Individual Accountability Principle: Any legislator defying the party mandate should immediately vacate the seat and seek a fresh mandate from voters — the current system allows seat retention during proceedings
Supreme Court Clarity: A definitive judgment on the pending constitutional appeals — particularly on the “political party vs. legislative party” distinction in Paragraph 4 — would eliminate the interpretive ambiguity that enables misuse

UPSC Note Mains connection: Anti-defection law is a recurring UPSC Mains topic appearing in questions on Indian democracy, political accountability, and constitutional provisions. Key cases to know: Kihoto Hollohan v. Zachillhu (1992 — upheld constitutional validity); Nabam Rebia case (2016); K.M. Singh case (2020); the ongoing Shiv Sena and NCP cases.

Practice Question “Despite constitutional amendments, the provisions of merger under the anti-defection law continue to be misused for political gains.” Critically analyse this statement in the context of recent developments and discuss the limitations of the powers of presiding officers. (15 Marks, 250 Words)

Practice Question With reference to the Tenth Schedule of the Indian Constitution, consider the following statements: 1. The Tenth Schedule was inserted into the Constitution by the 52nd Constitutional Amendment Act, 1985. 2. The provision allowing one-third of a legislative party to split without disqualification was removed by the 91st Constitutional Amendment Act, 2003. 3. Under the current Tenth Schedule, a merger is valid if at least two-thirds of the members of the original political party (national organisation) approve it, irrespective of the legislative party’s position. Which of the statements given above is/are correct? (A) 1 and 2 only (B) 2 and 3 only (C) 1 only (D) 1, 2 and 3 Answer: (A) 1 and 2 only — Statement 3 is incorrect: Paragraph 4 requires two-thirds of the LEGISLATIVE party members (elected members in the House) to support the merger — not the original political party’s national organisation. The confusion between these two categories is precisely the source of the legal ambiguity being misused.