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Anti-Defection Law

Tenth Schedule of the Constitution

The Tenth Schedule, introduced by the Constitution (52nd Amendment) Act, 1985, is the constitutional mechanism to curb defections. ONOE proponents argue that continuous elections amplify the incentive to defect, making the Tenth Schedule's enforcement more difficult.

Key details

Tenth Schedule Para 2: Disqualifies a member of a Legislature who voluntarily gives up membership of their political party, or votes/abstains contrary to party direction without prior permission.
Tenth Schedule Para 4: Exempts mergers — a split in which at least two-thirds of a legislative party merges with another party is not treated as defection.
Deciding authority: The Speaker (or Chairman of the Upper House) decides on disqualification petitions — a power that has been criticised as compromised given Speakers' partisan affiliations.
Kihoto Hollohan v. Zachillhu (1992): Five-judge Constitution Bench upheld the constitutional validity of the Tenth Schedule; held that the Speaker's decision is subject to judicial review, but only after the final order (not during proceedings).
Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh (2016): Supreme Court ruled that a Speaker facing a no-confidence motion cannot decide disqualification petitions — a significant limitation on the Speaker's discretion.
Subhash Desai v. Principal Secretary (2023) (Maharashtra Speaker case): Supreme Court reiterated that Speakers must decide disqualification petitions within a reasonable time; indefinite delay is unconstitutional.