Shiv Sena UBT moves SC against Speaker's nod to six MPs merger
The Lok Sabha Speaker, on 18 July, approved the merger of six Lok Sabha members (elected on one party's ticket) into another party's parliamentary group, days before the Monsoon Session began
The party from which the six members merged out has moved the Supreme Court challenging the Speaker's approval
The plea was mentioned before a bench headed by the Chief Justice of India, seeking urgent listing; the Court indicated it would consider listing the matter for hearing but did not commit to an immediate date
The challenge centres on whether the statutory conditions for a valid "merger" under the Tenth Schedule to the Constitution were satisfied before the Speaker recognised it
Tenth Schedule (Anti-Defection Law) — The Merger Exception under Paragraph 4
The Tenth Schedule was inserted into the Constitution by the 52nd Amendment Act, 1985, to disqualify legislators who defect after being elected on a party ticket. Paragraph 4 of the Schedule carves out a specific exception: disqualification for defection does not apply when there is a "merger" of the original political party with another party, provided the merger is recognised by not less than two-thirds of the members of the legislature party concerned. This is distinct from an individual member simply switching parties, which attracts disqualification under Paragraph 2.
Key Details
- Inserted by the 52nd Constitutional Amendment Act, 1985
- Paragraph 2: disqualifies a member who voluntarily gives up membership of, or votes against the whip of, the party on whose ticket they were elected
- Paragraph 4 (merger exception): requires (a) a merger of the original political party with another, and (b) not less than two-thirds of the members of that legislature party agreeing to, and remaining part of, the merger — often described as a "twin test"
- Paragraph 6: vests the power to decide all questions on disqualification for defection in the Speaker (Lok Sabha/Legislative Assembly) or Chairman (Rajya Sabha/Legislative Council)
The core legal question in the plea is whether the "twin test" under Paragraph 4 — a genuine party-level merger plus the requisite two-thirds legislature-party consent — was actually met before the Speaker recognised the six members as merged with the other party.
Kihoto Hollohan v. Zachillhu (1992) — Judicial Review of the Speaker's Tenth Schedule Decisions
In Kihoto Hollohan v. Zachillhu and Others (1992 Supp (2) SCC 651), a Constitution Bench of the Supreme Court upheld the constitutional validity of the Tenth Schedule but struck down Paragraph 7, which had sought to bar judicial review of the Speaker's/Chairman's decisions. The Court held that while exercising powers under the Tenth Schedule, the Speaker acts as a tribunal, and such quasi-judicial decisions are subject to judicial review under Articles 136, 226 and 227 — though review is limited to grounds such as violation of constitutional mandate, mala fides, non-compliance with natural justice, and perversity, and ordinarily only after the Speaker has given a final decision.
Key Details
- Decided 18 February 1992, by a Constitution Bench (5 judges)
- Struck down Paragraph 7 (which barred court jurisdiction over Tenth Schedule matters) as violative of the "basic structure," since it curtailed constitutional judicial review without following the Article 368(2) amendment procedure requiring state ratification
- Held that the Speaker functions as a tribunal for Tenth Schedule adjudication, making the decision amenable to writ/appellate jurisdiction, but review is confined to the final order and to limited grounds (not merits at every interim stage)
- Later cases (including on Speaker delay in deciding disqualification petitions) have further shaped the scope and timelines of this judicial review
Because Kihoto Hollohan affirmed that a Speaker's decision on merger/disqualification is judicially reviewable, the party affected by the Speaker's approval is entitled to challenge it before the Supreme Court on the recognised limited grounds — which is the constitutional basis for the present plea.
Political Party Splits vs Mergers — Distinguishing the Legal Tests
The Tenth Schedule originally (before the 91st Amendment, 2003) also contained a "split" exception under the erstwhile Paragraph 3, allowing a group comprising one-third of a legislature party to be treated as a separate party without disqualification. The 91st Amendment Act, 2003 deleted this split exception, leaving the two-thirds merger exception under Paragraph 4 as the only route by which a group of defecting members can avoid disqualification.
Key Details
- 91st Constitutional Amendment Act, 2003: deleted the one-third "split" exception (erstwhile Paragraph 3); also capped the size of the Council of Ministers
- Since 2003, only a genuine two-thirds "merger" (Paragraph 4) protects a group of members from disqualification; a mere fragment of a party defecting does not qualify
- The Speaker's/Chairman's determination of whether the twin conditions of Paragraph 4 are met is treated as a quasi-judicial function
Since the split route was closed off in 2003, any group defection today can only be shielded from disqualification by satisfying the stricter two-thirds merger test — making the factual and legal scrutiny of whether that test was met central to disputes such as the one now before the Supreme Court.
- Tenth Schedule inserted by the 52nd Amendment Act, 1985
- Paragraph 4 merger exception requires agreement of not less than two-thirds of the legislature party's members
- Paragraph 6 vests the decision-making power on disqualification/merger questions in the Speaker/Chairman
- Kihoto Hollohan v. Zachillhu (1992 Supp (2) SCC 651): decided 18 February 1992; struck down Paragraph 7; confirmed limited judicial review of Speaker's Tenth Schedule decisions
- 91st Amendment Act, 2003: removed the earlier one-third "split" exception, leaving merger (two-thirds) as the sole defection-disqualification exception
- The Speaker's approval in this case was granted on 18 July, immediately before the start of the Monsoon Session of Parliament