Anti-Defection Law and the Merger Exception: Tenth Schedule, Two-Thirds Threshold, and Rajya Sabha Precedent
Seven members of the Rajya Sabha, constituting two-thirds of their legislative party's strength in the Upper House, announced their departure from their original party and merger with another parliamentary party.
The Rajya Sabha Chairman accepted the merger on April 27, 2026, issuing an official Secretariat notice confirming the move — shielding all seven members from disqualification under the Tenth Schedule (Anti-Defection Law).
The seven members represented exactly seven out of ten — 70% of their legislative party's Rajya Sabha strength — crossing the two-thirds (66.67%) threshold required for a valid merger under Paragraph 4 of the Tenth Schedule.
The remaining three members of the original legislative party did not join the merger; they continue as a separate group, also protected from disqualification under the Tenth Schedule's merger exception.
A counter-petition was filed by a member of the original party to the Rajya Sabha Chairman seeking disqualification of the seven, arguing that the parent political party itself has not merged and the move is therefore a colourable defection.
A constitutional irony emerged: one of the departing members had in 2022 introduced a private member's bill in the Rajya Sabha proposing to raise the merger threshold from two-thirds to three-fourths — which, had it become law, would have required eight members rather than seven, potentially blocking this very merger.
Tenth Schedule: Anti-Defection Law: Overview
The Tenth Schedule was inserted into the Constitution by the 52nd Constitutional Amendment Act, 1985, during the Rajiv Gandhi government. It was a response to large-scale political defections in the 1960s–1980s, notably the era of "Aaya Ram Gaya Ram" (a Haryana MLA who switched parties multiple times in a single day in 1967).
The seven departing members are not being disqualified because they invoked the merger exception under Paragraph 4 — they crossed the two-thirds threshold of their legislative party's Rajya Sabha strength.
Paragraph 4: The Merger Exception (Detailed)
Paragraph 4 of the Tenth Schedule provides the principal exception to disqualification — the merger exception.
7 out of 10 = 70% > 66.67% (two-thirds). The numbers technically satisfy Paragraph 4's threshold. The Chairman of the Rajya Sabha accepted the merger on this basis.
"Legislature Party" vs. "Original Political Party": The Critical Ambiguity
The most contested legal question in the current episode is whether Paragraph 4 requires only a two-thirds vote of the legislature party OR also a formal merger at the level of the original political party (the national organisation).
Two-tier structure of Paragraph 4:
- Legislature party: All elected representatives of a party within a particular House (e.g., a party's 10 Rajya Sabha MPs form its Rajya Sabha legislature party)
- Original political party: The national/organisational party to which the member belongs
The ambiguity: Paragraph 4(1) reads: "...where the original political party of a member of a House merges with another political party..." This raises the question: Is it the original political party (national organisation) that must formally merge — or is a two-thirds legislative party agreement itself deemed a "merger" under the Schedule?
- Conjunctive interpretation: BOTH (i) the political party at the national level must formally merge AND (ii) two-thirds of the legislature party must agree. Under this view, a legislative faction's vote cannot substitute for a genuine party-level merger.
- Disjunctive/liberal interpretation: Two-thirds agreement by the legislature party is itself sufficient to constitute a merger for the purposes of the Tenth Schedule. This is the interpretation favoured by those who executed the current merger.
Counter-petition argument: Petitioners argue that since the parent political party has not merged nationally, the exception in Paragraph 4 cannot be invoked — making the departure a straightforward defection subject to disqualification under Paragraph 2.
The Rajya Sabha Chairman's acceptance of the merger favours the disjunctive interpretation. The counter-petition, if pursued in court, could result in judicial clarification of this long-standing ambiguity.
Judicial Scrutiny: Kihoto Hollohan v. Zachillhu (1992)
The foundational Supreme Court judgment on the Tenth Schedule is Kihoto Hollohan v. Zachillhu (1992).
Key holdings:
- The Tenth Schedule is constitutionally valid — it does not violate the basic structure of the Constitution, the principle of representative democracy, or freedom of speech under Article 105
- Paragraph 7 (which barred judicial review of the Speaker's/Chairman's decision) was struck down as unconstitutional — it violated the principles of judicial review (part of the basic structure)
- The presiding officer's decision is a quasi-judicial function — subject to judicial review by the High Court and Supreme Court, but only after a final order is made (not by way of interim stay mid-proceeding)
- Courts can review the disqualification decision for errors of jurisdiction, law, or natural justice — but the Speaker/Chairman retains the primary adjudicatory role
Key Details
- Case: Kihoto Hollohan v. Zachillhu — 5-judge Constitution Bench (1992)
- Outcome: Tenth Schedule upheld; Paragraph 7 (ouster of judicial review) struck down
- Subsequent case: Ravi S. Naik v. Union of India (1994) — expanded the definition of "voluntarily giving up membership" to include conduct-based inferences (formal resignation from party not necessary)
The counter-petition and any judicial challenge to the Rajya Sabha Chairman's merger acceptance would be governed by the Kihoto Hollohan framework — courts can intervene but only post a final adjudicatory order.
Impact on Rajya Sabha Arithmetic
The merger has immediate arithmetic consequences for the Upper House.
Post-merger changes:
- The receiving party's strength in the Rajya Sabha rose to 113 seats, consolidating its position as the largest single party in the Upper House
- The original party's Rajya Sabha representation reduced from 10 to 3 members — below the threshold for "recognised party status" in Rajya Sabha (which requires either 10% of House membership or a specific numerical minimum)
- The three remaining members retain their seats but may lose entitlements associated with recognised party status (time allocation for debates, committee assignments, etc.)
Why Rajya Sabha mergers matter:
- The Rajya Sabha (Council of States) is a permanent House — not subject to dissolution
- Members serve 6-year staggered terms; a merger does not affect tenure or require re-election
- Government Bills that do not qualify as Money Bills require passage in both Houses; Rajya Sabha arithmetic is therefore directly consequential for legislative agenda
The merger shifts the Upper House's numerical balance significantly, illustrating why the anti-defection law's merger exception carries high political stakes.
- Tenth Schedule: Inserted by 52nd Constitutional Amendment Act, 1985
- Grounds for disqualification (Paragraph 2): (a) Voluntarily giving up party membership; (b) Voting/abstaining against party whip
- Merger threshold (current): Two-thirds of the legislative party's members in the House
- Merger threshold (pre-2003): One-third (the old "split" exception — deleted by 91st Amendment)
- 91st Constitutional Amendment Act (2003): Deleted split exception; raised merger threshold to two-thirds; capped Council of Ministers at 15% of lower house strength (Articles 75(1A), 164(1A))
- Deciding authority (Rajya Sabha): Chairman of the Rajya Sabha (Vice-President of India)
- Kihoto Hollohan v. Zachillhu (1992): Upheld Tenth Schedule; struck down Paragraph 7 (ouster of judicial review); presiding officer's decision is quasi-judicial and subject to post-order judicial review
- Ravi S. Naik v. Union of India (1994): "Voluntarily giving up membership" includes conduct-based inferences; formal resignation not required
- Constitutional hooks: Article 102(2) (Parliament); Article 191(2) (state legislatures)
- This case (April 2026): 7 of 10 members (70%) of the legislative party invoked Paragraph 4 merger exception; Chairman accepted merger; counter-petition filed
- Post-merger Rajya Sabha strength: Receiving party rises to 113 seats; original party reduced to 3 seats
- Legislature party: Distinct from "original political party" — the legislature party is the subset of elected members in a given House; the political party is the national organisation