Anti-Defection Law (Tenth Schedule)

The anti-defection law is a set of rules in the Constitution that punishes an elected lawmaker for leaving the party on whose ticket they won. It is found in the Tenth Schedule of the Constitution. If a Member of Parliament (MP) or a Member of a state Legislative Assembly or Council (MLA/MLC) "defects", they can lose their seat. The law was added by the 52nd Constitutional Amendment Act, 1985.

Why does India need this law?

When you vote in an election, you often vote for a party and its promises, not only for a person. If that person switches to another party after winning, your vote is used for something you did not choose. Frequent switching also makes governments unstable. A government with a thin majority can fall overnight if a few lawmakers are offered money or ministerial posts to change sides. The law tries to stop this buying and selling of lawmakers, often called horse-trading.

Where did it come from?

In the late 1960s, party switching became very common in the states. In 1967, a Haryana MLA named Gaya Lal changed his party three times in one day. This gave rise to the famous phrase "Aaya Ram, Gaya Ram" (Ram came, Ram went), used for lawmakers who keep switching. Several attempts to pass a law failed in the 1970s.

Finally, Parliament passed the 52nd Amendment in 1985. It amended Articles 101, 102, 190 and 191 and added the Tenth Schedule. The 91st Constitutional Amendment Act, 2003 later made the law stricter, as explained below.

Who can be disqualified, and for what?

Paragraph 2 of the Tenth Schedule lists the grounds. They differ for three kinds of members:

• Members elected on a party ticket are disqualified if (a) they voluntarily give up membership of their party, or (b) they vote or stay away from a vote against the party's instruction (called a whip) without the party's prior permission. In case (b), there is no disqualification if the party excuses (condones) the act within 15 days.
• Independent members (elected without any party) are disqualified if they join any political party after the election.
• Nominated members are disqualified if they join a political party after six months from the day they take their seat. Within the first six months, they may join a party.

Note that "voluntarily giving up membership" does not need a formal resignation letter. In Ravi S. Naik v. Union of India (1994), the Supreme Court said this can be inferred from a member's conduct, for example openly working against their party or joining another party's rally in a clear way.

What are the exceptions?

The law allows two situations where switching is not punished:

• Merger (Paragraph 4): If the original political party merges with another party, and at least two-thirds of the members of the legislature party agree to the merger, those members are not disqualified. Members who refuse the merger and choose to sit as a separate group are also protected.
• Presiding officers (Paragraph 5): A person elected as Speaker, Deputy Speaker, Chairman or Deputy Chairman may give up party membership to act neutrally. They can rejoin the party after leaving that office, without disqualification.

What did the 91st Amendment (2003) change?

Originally, Paragraph 3 protected a "split" if at least one-third of a legislature party broke away. This was badly misused, as small groups could easily be put together to break a party. So the 91st Amendment deleted Paragraph 3. Now only a two-thirds merger is protected. The same amendment also:

• Limited the size of the Council of Ministers to 15% of the total members of the Lok Sabha (Article 75(1A)) or of the state Legislative Assembly (Article 164(1A)). For small states, at least 12 ministers are allowed. This reduced the number of posts that could be offered as a reward for switching.
• Said that a member disqualified for defection cannot be made a minister until re-elected (Articles 75(1B) and 164(1B)).
• Added Article 361B: a disqualified defector cannot hold any remunerative political post (a paid government post) until their term ends or until they are re-elected, whichever is earlier.

Who decides, and how?

Under Paragraph 6, the Speaker (Lok Sabha or Assembly) or the Chairman (Rajya Sabha or Legislative Council) decides whether a member is disqualified. A petition must be filed, and the member gets a chance to reply. Paragraph 6(2) says these proceedings count as "proceedings in Parliament" or "in the Legislature of a State". Paragraph 8 lets each House make its own rules for the process.

Think of the Speaker here like a cricket umpire: the umpire gives the decision, but a third umpire (the courts) can review it in certain cases.

What have the courts said?

The Supreme Court has shaped this law through several big cases:

• Kihoto Hollohan v. Zachillhu (1992): The Court upheld the Tenth Schedule. It said the Speaker acts as a tribunal (a body that decides disputes like a court). But the Speaker's decision can be reviewed by courts on limited grounds such as mala fides (bad intent), breaking the rules of natural justice (fair hearing), or going beyond powers. It struck down Paragraph 7, which had tried to block all court review, because that change needed ratification by half the states under Article 368(2) and had not received it.
• G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly (1996): A member expelled by their party is still treated as a member of that party for the Tenth Schedule. If they join another party, they can be disqualified.
• Rajendra Singh Rana v. Swami Prasad Maurya (2007): When a Speaker fails to decide a disqualification petition, that failure itself can be examined by the courts.
• Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020): The Speaker should decide disqualification petitions within three months, except in extraordinary cases. The Court also suggested that Parliament consider giving this job to an independent body instead of the Speaker.
• Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023): A Constitution Bench said the political party, not just the group of lawmakers in the House (the legislature party), appoints the whip. It also said the Speaker must decide petitions within a reasonable time.
• July 2025 (Telangana case): The Supreme Court directed the Telangana Assembly Speaker to decide petitions against 10 MLAs within three months. It warned that delay lets defectors enjoy the benefits of switching for the whole term ("operation successful, but patient died"). It held that a Speaker deciding under Paragraph 6 does not get immunity under Articles 122 or 212, and asked Parliament to consider a faster, time-bound system.

Commonly confused concepts

• Merger vs split: A merger needs two-thirds of the legislature party and is still protected. A split (one-third) is no longer protected since 2003.
• Legislature party vs political party: The legislature party is only the party's members sitting in a House. The political party is the full organisation outside the House. Since the 2023 Maharashtra judgment, the whip is appointed by the political party.
• Tenth Schedule disqualification vs Article 102(1)/191(1) disqualification: Defection cases are decided by the Speaker or Chairman. Other disqualifications (like holding an office of profit) are decided by the President or Governor after taking the Election Commission's opinion (Articles 103 and 192).
• Tenth Schedule vs Tenth Amendment: The Tenth Schedule is the anti-defection law. The Tenth Amendment (1961) made Dadra and Nagar Haveli a Union Territory. They are unrelated.
• Expulsion vs voluntary exit: A member expelled by their party is not disqualified just for being expelled. But if they then join another party, they can be (G. Viswanathan, 1996).

Issues, criticism and the way forward

• The Speaker is not neutral enough: The Speaker usually comes from the ruling side. Critics say Speakers have sometimes delayed or rushed decisions in a way that helped their own side.
• Long delays: Petitions sometimes stay pending for years. The defector keeps the seat, and sometimes even becomes a minister, while the case waits.
• Mergers used as a loophole: Groups of lawmakers sometimes claim a "merger" to escape disqualification, even when the original party organisation has not actually merged.
• Resign and re-contest: Some lawmakers resign their seat instead of defecting, then win the bypoll on a new party's ticket. This is legal, but the result can be the same as defection, and it also costs public money to hold bypolls.
• Less freedom for lawmakers: Because every vote is controlled by a whip, lawmakers cannot vote by conscience or for their voters' local interest, even on minor bills. This weakens debate in the House.
• Suggested reforms:
• Dinesh Goswami Committee (1990): Disqualification should be decided by the President or Governor on the advice of the Election Commission. The law should apply only to voluntarily leaving the party and to votes on confidence/no-confidence motions and key issues.
• Law Commission, 170th Report (1999): Pre-poll alliances should be treated as one party for the anti-defection law, and whips should be limited to votes that affect the survival of the government.
• National Commission to Review the Working of the Constitution (NCRWC), 2002: Defectors should be barred from being a minister or holding any paid political post for the rest of the term. (This was largely adopted through the 91st Amendment.)
• The Supreme Court (2020, 2025) has asked Parliament to consider an independent tribunal and fixed timelines.

Concepts to Know

• Schedule (of the Constitution): A list attached at the end of the Constitution that gives details on a topic. India's Constitution has 12 Schedules.
• Whip: An instruction from a party telling its members how to vote in the House. The word also means the party officer who gives this instruction.
• Presiding officer: The person who runs the House, such as the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha.
• Judicial review: The power of courts to check whether a decision by the government or another authority follows the Constitution and the law.
• Natural justice: Basic fairness in deciding a case: the person must get a fair hearing, and the judge must not be biased.
• Bypoll (by-election): An election held for just one seat when it falls empty in the middle of a term, for example after a resignation or disqualification.
• Ratification by states: Some constitutional amendments (such as those affecting courts' powers) must be approved by at least half the state legislatures before they take effect (Article 368(2)).