'We will see': CJI as Sena (UBT) moves SC challenging LS Speaker's approval of MPs' merger with Shinde faction
A group of Lok Sabha members from a legislature party challenged before the Supreme Court the Lok Sabha Speaker's decision approving the merger of a set of members from their original party into another party
The petitioners argued that the Speaker's approval did not meet the constitutional threshold required for a valid merger to be recognised under the anti-defection framework
The matter was mentioned before the Chief Justice of India for urgent listing; the Court indicated it would consider scheduling the matter for hearing without giving an immediate commitment
The case centres on judicial review of a Speaker's decision on a defection-related question — a recurring category of dispute under India's anti-defection law
The Tenth Schedule and the Merger Exception (Paragraph 4)
The Tenth Schedule to the Constitution, inserted by the 52nd Amendment Act, 1985, disqualifies a member of a House who voluntarily gives up membership of the party on whose ticket they were elected, or who votes/abstains against the party whip. Paragraph 4 of the Tenth Schedule carves out a narrow exception: if the "original political party" itself merges with another party, members who go along with the merger are not disqualified, provided a specific numerical and procedural threshold is met.
Key Details
- Under Paragraph 4, a valid merger requires that not less than two-thirds of the members of the legislature party concerned have agreed to the merger — this is the "two-thirds test"
- Courts applying the merger exception have developed a "twin test": (i) there must be an actual merger of the original political party with another party, and (ii) at least two-thirds of the legislature party's members must have agreed to and acted upon that merger — numerical support alone, without a genuine party-level merger, is not sufficient
- The Speaker (or Chairman in the Rajya Sabha/State Legislative Council) is the authority empowered under Paragraph 6 of the Tenth Schedule to decide, in the first instance, whether a member is disqualified or whether the merger exception applies
- The Speaker's role here is adjudicatory (deciding a dispute) even though the Speaker is also, ordinarily, a member elected from a political party — a structural feature that has repeatedly been the basis for legal challenges
The current challenge tests whether the numerical and procedural conditions of the Paragraph 4 merger exception were actually satisfied before the Speaker approved the merger — precisely the "twin test" question courts have addressed in earlier defection disputes.
Deletion of the "Split" Exception — 91st Amendment Act, 2003
Before 2003, Paragraph 3 of the Tenth Schedule provided a separate exception: a "split" in the original party was protected from disqualification if at least one-third of the legislature party members split away together. The 91st Constitutional Amendment Act, 2003 deleted this split provision entirely, leaving the two-thirds merger exception in Paragraph 4 as the sole ground on which a group defection can escape disqualification.
Key Details
- The 91st Amendment Act, 2003 also inserted Article 75(1B) and Article 164(1A), capping the size of the Union and State Councils of Ministers at 15% of the total strength of the Lok Sabha/State Legislative Assembly, to curb defections motivated by ministerial berths
- The Committee on Electoral Reforms (Dinesh Goswami Committee), the Law Commission, and the National Commission to Review the Working of the Constitution had all recommended removing the one-third split exception, since it was widely used to engineer defections
- Since 2003, only a genuine merger meeting the two-thirds threshold under Paragraph 4 can protect defecting members from disqualification — a stricter standard than the pre-2003 one-third split rule
Because the lower one-third "split" route no longer exists after 2003, any group defection today must clear the higher two-thirds "merger" bar — making the factual and procedural correctness of a Speaker's merger finding, as challenged in this case, constitutionally significant.
Judicial Review of the Speaker's Decisions — Kihoto Hollohan v. Zachillhu (1992)
In Kihoto Hollohan v. Zachillhu (1992), 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 all judicial review of the Speaker's decisions on disqualification/merger questions.
Key Details
- Paragraph 7 was held invalid because it effectively amounted to a change in the jurisdiction of courts under Article 368(2), which required ratification by state legislatures that had not been obtained — exclusion of judicial review was also held to offend the basic structure
- The Court held that while the Speaker's decision is akin to a quasi-judicial tribunal's order (not immune from scrutiny), judicial review at that stage is confined to grounds such as violation of natural justice, mala fides, perversity, or jurisdictional error — courts do not ordinarily re-appreciate the merits before the Speaker gives a final decision
- Subsequent cases have reinforced that undue and unexplained delay by a Speaker in deciding a defection petition can itself be a ground for judicial intervention
The Supreme Court's willingness to even consider listing this challenge for hearing reflects the Kihoto Hollohan framework — the Speaker's merger approval is not beyond judicial scrutiny, and can be tested on grounds such as whether the two-thirds threshold and genuine-merger requirement were properly applied.
- Tenth Schedule inserted by: 52nd Constitutional Amendment Act, 1985
- Merger exception threshold (Paragraph 4): at least two-thirds of legislature party members must agree to the merger
- Split exception (Paragraph 3, one-third): deleted by the 91st Constitutional Amendment Act, 2003
- Deciding authority for disqualification/merger disputes: the Speaker (Lok Sabha/Assembly) or Chairman (Rajya Sabha/Council), under Paragraph 6
- Key precedent on judicial review: Kihoto Hollohan v. Zachillhu (1992) — struck down Paragraph 7's bar on judicial review
- 91st Amendment also capped Council of Ministers size at 15% of House strength (Articles 75(1B), 164(1A))