20 rebel TMC MPs to merge with Nationalist Citizens Party, back NDA: Kakoli Ghosh Dastidar

A group of Members of Parliament have publicly declared their intention to merge with another political party — a constitutional action that, if executed, wo...

What Happened

A group of Members of Parliament have publicly declared their intention to merge with another political party — a constitutional action that, if executed, would invoke the merger provisions of the Tenth Schedule of the Indian Constitution.
The constitutional validity of such a merger depends on meeting the precise thresholds and procedures laid down in the Tenth Schedule (Anti-Defection Law), as interpreted by the Supreme Court.
This development raises questions about the doctrine of voluntary membership, the distinction between "defection" and "merger," and the role of the Speaker in adjudicating disqualification.

Static Topic Bridges

The Tenth Schedule — Anti-Defection Law (52nd Constitutional Amendment, 1985)

The Tenth Schedule was inserted into the Constitution of India by the 52nd Constitutional Amendment Act, 1985, during the tenure of the Rajiv Gandhi government. It introduced provisions for the disqualification of members of Parliament and State Legislatures on grounds of defection.

Purpose: To curb "the evil of political defections" — the practice of elected members switching parties (often for personal gain or external inducement) after elections, which had destabilised governments and undermined electoral mandates.
Paragraph 2 (Disqualification grounds): A member is disqualified if: (a) they voluntarily give up their membership of the political party on whose ticket they were elected; or (b) they vote or abstain from voting in the House contrary to the party's direction, without prior permission.
Paragraph 4 (Merger exception — the key provision): A member is NOT disqualified if they, and at least two-thirds of the members of their original legislative party, agree to merge with another party. This merger must be of the original political party itself or with another political party.
The original Tenth Schedule (1985) also contained a "split" provision (Paragraph 3) permitting defection if at least one-third of the legislative party split. This was abolished by the 91st Constitutional Amendment Act, 2003, leaving only the merger exception in place.
The decision on disqualification petitions is made by the Speaker (Lok Sabha/Legislative Assembly) or the Chairman (Rajya Sabha/Legislative Council).

Connection to this news: Any group of MPs claiming protection from disqualification on grounds of "merger" must demonstrate that at least two-thirds of their original legislative party have agreed to the merger — a constitutionally precise threshold. A group falling below the two-thirds threshold cannot claim merger protection and would face disqualification proceedings.

Kihoto Hollohan v. Zachillhu (1992) — The Supreme Court's Landmark Ruling

The constitutional validity of the Tenth Schedule was challenged in this landmark case before a five-judge Constitution Bench of the Supreme Court of India. The case was decided in 1992 (also cited as 1993 in some reports, as the judgment was delivered January 1993 for a case argued in 1992).

Core challenge: That the Tenth Schedule violated parliamentary democracy, freedom of speech of legislators, and was unconstitutional for vesting quasi-judicial powers in the Speaker without adequate safeguards.
Supreme Court's holding: The Bench, by a 3:2 majority, upheld the constitutional validity of the Tenth Schedule. The Court held it did not violate the basic structure of the Constitution and was a legitimate check on defection.
Paragraph 7 struck down: The Court, unanimously, struck down Paragraph 7 of the Schedule, which had placed the Speaker's decision beyond judicial review. The Court held that while the Speaker's order is final on merits initially, it is subject to judicial review under Articles 32 and 226 of the Constitution — but only after the disqualification decision is made, not before.
Speaker's role: The Speaker (or Chairman) acts in a quasi-judicial capacity when hearing disqualification petitions under the Tenth Schedule. However, concerns about the Speaker's political partiality have been raised repeatedly — the Supreme Court has in subsequent cases directed that disqualification petitions be decided within a reasonable time and has restrained Speakers from delaying decisions indefinitely.
The Supreme Court further clarified in Nabam Rebia v. Deputy Speaker (2016) that the Speaker cannot adjudicate disqualification petitions when a notice for their own removal is pending.

Connection to this news: Any disqualification proceedings arising from the reported merger declaration will be adjudicated by the Speaker of Lok Sabha, subject to eventual judicial review in the High Court or Supreme Court. The Kihoto Hollohan ruling defines the contours of that process.

"Voluntary Giving Up" of Membership — Scope of Paragraph 2

Courts have interpreted "voluntarily giving up membership" broadly. The Supreme Court held in Ravi S. Naik v. Union of India (1994) that explicit resignation from the party is not necessary — conduct that is incompatible with continued membership can constitute voluntary relinquishment.

Publicly declaring support for a rival party or coalition, or announcing a merger, can be treated as voluntarily giving up original party membership — even before a formal letter of resignation is submitted.
The Legislature Party (the group of elected members) is distinct from the Political Party (the broader organisational entity). A merger requires the Political Party itself, or the legislative party's joining another party with two-thirds consent — not merely a sub-group declaring merger.
The 91st Amendment (2003) removed the split provision precisely because it was being misused: groups of members claiming "splits" without genuine organisational divisions in the parent party.
Merger vs. split: A valid merger under Paragraph 4 requires that the original party merge with another party, not merely that a faction of legislators declare merger. A faction acting without the parent party's formal merger is not protected.

Connection to this news: Whether the declared merger is constitutionally valid turns on: (a) whether the number declaring merger represents at least two-thirds of the legislative party in the House; and (b) whether the merger involves the political party itself, or only a faction of the legislative wing.

Role of the Speaker and Constitutional Concerns

The Speaker's quasi-judicial role under the Tenth Schedule has been a subject of sustained constitutional debate. The Speaker, elected from among the ruling party's members, is perceived to have inherent conflicts of interest when ruling on defection petitions that affect the government's numerical majority.

The Election Commission of India decides disputes about recognition of a political party (which faction is the "real" party) — a separate proceeding from the Speaker's disqualification decision.
The Law Commission of India (170th Report, 1999) and a Constitutional Review Commission (2002) both recommended that disqualification petitions be decided by an independent tribunal (such as the Election Commission or a dedicated judicial body) rather than the Speaker — but this recommendation has not been implemented.
In practice, Speakers have been criticised for delay — some disqualification petitions have remained pending for years, allowing disqualified members to continue serving.
The Supreme Court in Keisham Meghachandra Singh v. Speaker, Manipur (2020) directed that disqualification petitions must be decided within a reasonable time, and granted the Election Commission power to fix a deadline.

Connection to this news: The Speaker of Lok Sabha will be the first forum for any disqualification petition filed against the MPs in question. The process and timeline will be closely watched given the Supreme Court's evolving jurisprudence on expeditious disposal.

Key Facts & Data

Tenth Schedule: inserted by 52nd Constitutional Amendment Act, 1985
Merger exception threshold: two-thirds of the legislative party must consent
Split provision (one-third threshold): abolished by 91st Constitutional Amendment Act, 2003
Kihoto Hollohan v. Zachillhu: decided 1992/1993 — upheld Tenth Schedule; struck down Paragraph 7 (ouster of judicial review clause)
Disqualification adjudicator: Speaker (Lok Sabha/Legislative Assembly) or Chairman (Rajya Sabha/Legislative Council)
Judicial review: available after disqualification decision, under Articles 32 and 226
Nabam Rebia case (2016): Speaker cannot hear disqualification when removal notice against Speaker is pending
Ravi S. Naik v. Union of India (1994): "voluntarily giving up membership" includes conduct, not just formal resignation
Keisham Meghachandra Singh (2020): SC directed timely disposal of disqualification petitions