Defection and the Tenth Schedule

The grounds, clause by clause

Paragraph 2(1)(a): voluntarily giving up membership. A member belonging to a political party is disqualified "if he has voluntarily given up his membership of such political party". The phrase is wider than resignation: conduct can amount to giving it up where no letter is written.

Paragraph 2(1)(b): defying the whip. He is disqualified "if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs", without prior permission, where the voting or abstention "has not been condoned by such political party, person or authority within fifteen days". Three things save him: permission before, condonation within fifteen days, or a direction not covering what he did.

Paragraph 2(2) and 2(3). An independent is disqualified if he joins a party after the election; a nominated member, if he joins one more than six months after taking his seat.

Paragraph 5: the presiding officer is exempt. A member elected Speaker or Deputy Speaker, Deputy Chairman of the Council of States, or a presiding officer of a State House, is not disqualified if he gives up party membership by reason of that election and does not rejoin while in office.

The split defence is gone

This is the commonest error in answers on this topic.

Paragraph 3 once gave a defence of split: not less than one third of a legislature party could break away and escape disqualification. Paragraph 3 was omitted by the Constitution (Ninety-first Amendment) Act 2003, with effect from 1 January 2004, and the Constitution's own footnote to the Schedule records the omission. Paragraph 2(1) now opens "Subject to the provisions of paragraphs 4 and 5", the same Amendment having substituted those words for "paragraphs 3, 4 and 5".

There is therefore no defence of split in Indian law today. A student who writes that one third of a legislature party may break away is describing a provision taken out of the Constitution over twenty years ago.

What survives is merger, under paragraph 4. A member is not disqualified where his original party merges with another and he claims that he and other members of it have either joined the other or new party, or have refused the merger and opted to function as a separate group. The merger is deemed to have taken place "if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger." Two thirds, not one third, and a merger of the party, not a bloc walking out.

Who decides, and what happened to paragraph 7

Paragraph 6(1) refers the question to the Chairman or Speaker, "and his decision shall be final"; where it concerns him personally it goes to a member the House elects for the purpose. Paragraph 6(2) deems such proceedings to be proceedings in Parliament within article 122, or in a State Legislature within article 212.

Paragraph 7 went further: "notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule." That paragraph is dead. The Constitution's own footnote records that it was declared invalid for want of ratification under the proviso to article 368(2), on the majority opinion in Kihoto Hollohan.

The cases

Facts. Kihoto Hollohan v. Zachillhu, 1992 SCR (1) 686, 1992 SCC Supl. (2) 651, decided 18 February 1992 by a Bench of five. Petitions in several High Courts and in this Court challenged the Fifty-second Amendment itself: paragraph 7 took away the jurisdiction of the Supreme Court under article 136 and of the High Courts under articles 226 and 227, so the Bill needed ratification by half the States under the proviso to article 368(2) and had not got it.

Held on paragraph 7. By the Court, that it "in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High courts", changed the operation of articles 136, 226 and 227, and so required ratification under the proviso to article 368(2). By the majority it was severable, the remaining provisions being "complete in themselves". Sharma and Verma JJ. dissented, holding that without ratification the whole Amendment Act failed.

Held on paragraph 2. Valid. Its provisions "do not suffer from the vice of subverting democratic rights of elected Members" and "are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections". But "any direction" in paragraph 2(1)(b) must be "appropriately confined to the objects and purposes of the Schedule", so not every party instruction disqualifies.

Held on review. Speakers and Chairmen "exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule, and their decisions in that capacity are amenable to judicial review", confined to constitutional violation, mala fides, breach of natural justice and perversity, and never at "any stage prior to the making of a decision by the Speakers/Chairmen".

Why it matters. It settles four things: the Schedule is valid, paragraph 7 is not, the Speaker is a tribunal, and review lies only after his decision, on limited grounds.

Facts. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, AIR 2016 SC 3209, 2016 (8) SCC 1, decided 13 July 2016 by a Bench of five. In Arunachal Pradesh a notice of resolution for the removal of the Speaker under article 179(c) was given in November 2015. The Speaker, whose own removal was thus pending, proceeded to disqualify fourteen members under the Tenth Schedule.

Held. "That it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending." The reason is self-preservation: decide the disqualifications first and members entitled to vote on the Speaker's removal are gone before they can, and "the possibility of a disqualification petition being decided on political considerations, rather than on merits, cannot be ignored".

Why it matters. It is the sequencing rule, and it exposes the Schedule's weakness: a presiding officer who is a party man may alter the strength of the House judging him.

Facts. Subhash Desai v. Principal Secretary, Governor of Maharashtra, decided on 11 May 2023 by a Bench of five. The report we hold carries no report reference, so the case is given by its date. The Shiv Sena split into two factions in June 2022. The Chief Minister resigned without facing a floor test, the other faction formed a government with another party, rival whips and leaders were claimed, and cross-petitions for disqualification were filed.

Held on the split and the whip. "The effect of the deletion of Paragraph 3 of the Tenth Schedule is that the defence of 'split' is no longer available to members facing disqualification proceedings." Where two or more factions each claim to be the party, the Speaker must decide prima facie which is the political party for paragraph 2(1), on the party constitution filed with the Election Commission before the factions emerged. And "the political party and not the legislature party appoints the Whip and the Leader of the party in the House".

Held on delay and pendency. The Court "cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance", and "the Speaker must decide disqualification petitions within a reasonable period". An MLA meanwhile "has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification". Nabam Rebia was referred to seven judges.

Why it matters. It answers what the 2003 amendment left open: what happens when a party splits in fact although split is no defence, and who speaks for the party.

A worked example

Anil is elected on the ticket of Party P, which has 60 members in the Assembly. He and 25 others fall out with the leadership and support a motion of no confidence against the government P leads, defying P's whip.

Step one, which ground applies? Paragraph 2(1)(b), voting contrary to a direction of the political party without prior permission. If they also publicly repudiate P, paragraph 2(1)(a) is engaged too. On Kihoto Hollohan "any direction" is read down to the Schedule's objects, and a whip on a confidence motion is at their centre.

Step two, is there a split defence? No. Paragraph 3 was omitted with effect from 1 January 2004. Twenty-six of sixty would once have sufficed; it is now nothing.

Step three, merger? Only if P merges with another party and two thirds of P's legislature party, 40 of 60, agree.

Step four, who decides, and when? The Speaker under paragraph 6(1), on Subhash Desai within a reasonable period. Until then the twenty-six may sit and vote.

Step five, can a court be moved before he decides? No. On Kihoto Hollohan review does not lie before the decision; after it, it lies for breach of a constitutional mandate, mala fides, breach of natural justice or perversity.

What it does NOT mean

It does not mean a member may never disagree. The disqualification bites on a vote or an abstention contrary to a direction, not on speech: Kihoto Hollohan read "any direction" down so the Schedule does not "unduly impinge on the said freedom of speech of a member".

It does not mean a defector loses his seat automatically. Somebody must decide the disqualification was incurred, and until then the member sits.

The delay problem

The Schedule fixes no time limit. A Speaker who does not want a government to fall can simply not decide, and because review does not lie before a decision, inaction is close to unreviewable. Subhash Desai answered that only with "within a reasonable period". The structural criticism is older: a judicial function is given to an officer chosen by, and loyal to, the majority whose fate it decides. Proposals to move the decision to the President or Governor acting on the Election Commission's opinion, as articles 103 and 192 provide for the other disqualifications, have been made repeatedly and not adopted.

Quick revision

• Tenth Schedule and articles 102(2) and 191(2) inserted by the Fifty-second Amendment, in force 1 March 1985.
• Grounds, paragraph 2: voluntarily giving up party membership; voting or abstaining against a party direction without prior permission and without condonation within fifteen days; an independent joining a party; a nominated member joining one after six months. Paragraph 5 exempts presiding officers.
• Paragraph 3, the split defence, was omitted by the Ninety-first Amendment with effect from 1 January 2004. There is no split defence. Paragraph 4 saves a merger only where two thirds of the legislature party agree.
• Paragraph 6: the Chairman or Speaker decides and his decision is called final. Paragraph 7, barring the courts, was declared invalid for want of ratification under the proviso to article 368(2).
• Kihoto Hollohan (1992): paragraph 7 struck and severed; paragraph 2 upheld; the Speaker is a tribunal; review only after his decision, for constitutional violation, mala fides, breach of natural justice or perversity; "any direction" read down.
• Nabam Rebia (2016): a Speaker facing a pending notice of his own removal may not decide disqualification petitions. Referred to seven judges in 2023.
• Subhash Desai (2023): no split defence; the political party appoints the whip and leader; the Speaker must decide within a reasonable period; pendency does not stop a member sitting.

Test yourself

1. State the four grounds of disqualification in paragraph 2.

2. A group of one third of a legislature party breaks away. Advise them, and be precise about why your answer today is not the answer it would have been in 2002.

3. What did Kihoto Hollohan decide about paragraph 7, and what saved the rest of the Schedule?

4. Is the Speaker's decision open to judicial review? At what stage, and on what grounds?

5. "The Tenth Schedule cures defection and creates a worse problem." Discuss with reference to the deciding authority and to delay, and state the rule in Nabam Rebia and what happened to it in 2023.