A legislative tangle in Maharashtra
A fresh legislative crisis in Maharashtra has reignited the debate over grey areas in the Tenth Schedule (Anti-Defection Law) of the Indian Constitution, with commentators calling for urgent revision of its provisions.
The crisis centres on the interpretation of "merger" provisions and the Speaker's adjudicatory powers in cases where significant factions of parties have crossed the floor — echoing the Shiv Sena and NCP splits of 2022–23 that set competing precedents.
A 2026 rupture involving Shiv Sena Lok Sabha MPs has re-exposed the same structural ambiguity: when rebels are recognised as the "official" party by the Election Commission, Speaker-level disqualification proceedings become practically inert.
Commentators note that courts typically take three to four years to adjudicate Speaker decisions, by which time the political reality has overtaken the legal question — making judicial review a theoretical rather than effective check.
Calls have been renewed for the Tenth Schedule to be amended so that (a) disqualification petitions are decided by an independent tribunal rather than the Speaker, and (b) the merger exception is tightened to prevent manufactured majorities from defeating its intent.
The Tenth Schedule — Structure and Key Provisions
The Tenth Schedule was inserted into the Indian Constitution by the Constitution (52nd Amendment) Act, 1985. It operationalises the anti-defection law and applies to both Parliament and State Legislatures. A member is disqualified if: (i) the member voluntarily gives up membership of the political party on whose ticket they were elected; or (ii) the member votes or abstains contrary to the direction of the party without prior permission. The adjudicating authority is the Speaker (or Chairman in the Rajya Sabha / Upper House of State Legislatures), whose decision is subject to judicial review under Articles 32, 136, 226, and 227 — as confirmed by the Supreme Court in Kihoto Hollohan v. Zachillhu (1992).
Key Details
- Inserted by: Constitution (52nd Amendment) Act, 1985.
- Applies to: Houses of Parliament and State Legislative Assemblies and Councils.
- Grounds for disqualification: voluntary surrender of party membership, or defiance of party whip.
- Adjudicating authority: Speaker of the House (final, but subject to judicial review).
- Paragraph 7 (barring judicial review) was struck down in Kihoto Hollohan (1992) as violative of basic structure.
The Maharashtra crisis highlights the practical limits of the Speaker-as-adjudicator model, since a Speaker aligned with the ruling faction may delay proceedings — and courts cannot intervene until the Speaker decides.
The Merger Exception — Paragraph 4 of the Tenth Schedule
Paragraph 4 of the Tenth Schedule provides the only surviving defence against disqualification: a "merger." A merger is deemed to have taken place only when at least two-thirds of the legislature party members of the original party agree to the merger with another party. Crucially, the "original political party" (i.e., the extra-parliamentary party body) must also consent to the merger. In practice, the Election Commission's recognition of a rebel faction as the "real" party has been used to argue that the rebels constitute the "original party" — blurring the distinction between the parliamentary party (the legislature party) and the organisational party.
Key Details
- Merger threshold: two-thirds of the legislature party members must agree.
- Both the original party and two-thirds of the legislature party must consent.
- The 52nd Amendment (1985) removed the "split" exception (formerly one-third sufficed for a split); only merger now qualifies.
- Original split exception (paragraph 3) was deleted by the 91st Constitutional Amendment Act, 2003.
The recurring pattern in Maharashtra — where rebel groups claim the "original party" identity after Election Commission recognition — exploits the ambiguity between "legislature party" and "original political party" in Paragraph 4.
Speaker's Power and the Nabam Rebia Problem
In Nabam Rebia v. Deputy Speaker (2016), the Supreme Court held that if a notice for the removal of the Speaker is pending in the House, the Speaker cannot adjudicate disqualification petitions under the Tenth Schedule. This was intended to prevent a Speaker from using disqualification powers to consolidate the very majority that protects their own position. However, the ruling has had an unintended consequence: defecting legislators have learned to serve a removal notice against the Speaker as a tactical device to freeze disqualification proceedings, since the Speaker is then disabled from deciding petitions.
Key Details
- Case: Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016).
- Holding: Speaker disabled from deciding Tenth Schedule petitions when a removal motion notice is pending against them.
- Tactical misuse: Rebels serve removal notice → Speaker paralysed → disqualification stalled indefinitely.
- The Supreme Court's five-judge Constitution Bench in Subhash Desai v. Principal Secretary (2023, Maharashtra Shiv Sena case) referred the Nabam Rebia ruling to a larger bench for reconsideration.
The Maharashtra legislative tangles exploit precisely this gap — the Speaker's role as adjudicator is structurally compromised, and the Nabam Rebia ruling provides a procedural escape route for defecting legislators.
Kihoto Hollohan v. Zachillhu (1992) — Constitutional Validity Upheld
The Supreme Court's 3:2 decision in Kihoto Hollohan (1992) settled that the Tenth Schedule is constitutionally valid and does not violate the basic structure of the Constitution or legislators' freedom of speech. The Court held that the anti-defection law is a necessary check on political corruption and horse-trading. Crucially, it struck down Paragraph 7, which had sought to exclude judicial review of Speaker's disqualification orders — thereby preserving the courts' supervisory jurisdiction under Articles 32, 136, 226, and 227.
Key Details
- Case: Kihoto Hollohan v. Zachillhu and Others (1992 Supp (2) SCC 651), decided February 18, 1992.
- Majority (3:2) held Tenth Schedule constitutionally valid.
- Paragraph 7 (ouster of judicial review) struck down as violative of basic structure.
- Speaker's decisions under Paragraph 6 are subject to judicial review — not ordinary courts but High Courts/Supreme Court via constitutional jurisdiction.
The judgment established the current framework in which Speaker decisions are final at first instance but reviewable by courts — a framework that works poorly when courts take years and political events move in weeks.
Reform Proposals — Independent Tribunal Model
Legal commentators and the Law Commission have periodically recommended replacing the Speaker as adjudicating authority with an independent tribunal — such as a retired Supreme Court judge or a statutory Tribunal — to insulate disqualification decisions from partisan influence. The 170th Law Commission Report (1999) and the National Commission to Review the Working of the Constitution (NCRWC, 2002) both recommended this reform. Parliament has not yet acted on these recommendations.
Key Details
- 170th Law Commission Report (1999): recommended an independent tribunal for anti-defection adjudication.
- NCRWC (2002): endorsed tribunal model; also recommended that disqualification decisions should be time-bound (within three months).
- No amendment has been passed to shift adjudication from Speaker to tribunal as of 2026.
The Maharashtra crisis has renewed calls for exactly this reform — that the Tenth Schedule is structurally flawed as long as the Speaker, who owes political allegiance, remains the sole first-instance adjudicator.
- Tenth Schedule inserted by: Constitution (52nd Amendment) Act, 1985.
- Split exception removed by: Constitution (91st Amendment) Act, 2003.
- Merger threshold: two-thirds of legislature party members.
- Kihoto Hollohan v. Zachillhu (1992): upheld constitutional validity of Tenth Schedule; struck down Paragraph 7 (ouster of judicial review).
- Nabam Rebia v. Deputy Speaker (2016): Speaker disabled from deciding petitions when a removal notice is pending.
- Articles 102(2) and 191(2): parliamentary and state legislative disqualification provisions linked to Tenth Schedule.
- Articles 32, 136, 226, 227: constitutional jurisdiction under which courts review Speaker decisions.
- 170th Law Commission Report (1999) and NCRWC (2002): recommended independent tribunal model.
- 91st Amendment (2003) also capped Council of Ministers size at 15% of House strength (Article 164(1A) for states; Article 75(1A) for Centre).