SC issues notice to Lok Sabha Speaker Om Birla against approval of Sena (UBT) MPs' merger with Shinde faction
The Supreme Court issued notice to the Lok Sabha Speaker's office on a petition challenging his decision recognising the merger of a group of Members of Parliament from one legislature party into another.
The Speaker had approved the merger shortly before the Monsoon Session of Parliament, altering the respective strengths of the two legislature parties involved in the Lok Sabha.
The Court declined to grant an interim stay on the Speaker's decision at this stage and listed the matter for further hearing after two weeks, seeking the Speaker's response to the challenge.
The petition disputes whether the Speaker's decision satisfies the constitutional threshold for recognising a valid "merger" under the anti-defection provisions, rather than what would otherwise be a disqualifiable act of defection.
The Tenth Schedule and the Speaker's Role as Adjudicating Authority
The Tenth Schedule to the Constitution, popularly called the anti-defection law, was inserted by the Constitution (Fifty-Second Amendment) Act, 1985, to disqualify legislators who voluntarily give up membership of their political party or defy a party whip on specified votes without justification. Under Paragraph 6 of the Tenth Schedule, the Speaker (in the Lok Sabha or a state Assembly) or the Chairman (in the Rajya Sabha or a Legislative Council) is designated as the authority who decides any question of disqualification arising under the Schedule.
Key Details
- Paragraph 6 makes the Speaker's decision on disqualification questions "final," but this finality has been judicially qualified rather than absolute.
- The Speaker functions in a quasi-judicial, tribunal-like capacity while deciding such matters, distinct from the Speaker's ordinary presiding and administrative functions in the House.
- This adjudicatory function is separate from the constitutional process for the Speaker's own removal from office under Article 94, which requires a resolution passed by a majority of all then members of the House after at least fourteen days' notice.
The current dispute is not about the Speaker's tenure but about a specific quasi-judicial determination the Speaker made under Paragraph 6 — precisely the kind of decision the Tenth Schedule vests in the Speaker's office and that the Court is now scrutinising.
Paragraph 4: The Merger Exception and the Two-Thirds Threshold
Paragraph 4 of the Tenth Schedule is the sole surviving exception under which a group of legislators can change party affiliation without inviting disqualification for defection. It applies only where a genuine merger between the member's "original political party" and another party has taken place.
Key Details
- Under Paragraph 4(1) and 4(2), a merger is deemed valid only if at least two-thirds of the members of the legislature party concerned have agreed to it; members who agree to the merger, and those who do not, are both protected from disqualification if this threshold is met.
- The earlier "split" exception, under the original Paragraph 3, allowed protection for a breakaway faction representing at least one-third of a party's legislators; this was deleted by the Constitution (Ninety-First Amendment) Act, 2003, precisely to close a loophole that had been used to engineer defections while avoiding disqualification.
- Since 2003, the two-thirds merger route under Paragraph 4 is the only mechanism by which a group of legislators may realign with another party without disqualification proceedings.
The petition's core legal challenge turns on whether the Speaker correctly verified that two-thirds of the relevant legislature party had genuinely merged, as required by Paragraph 4, or whether the recognised realignment falls short of this constitutional threshold.
Judicial Review of the Speaker's Tenth Schedule Decisions: From Kihoto Hollohan to Keisham Meghachandra Singh
The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) upheld the constitutional validity of the Tenth Schedule but struck down Paragraph 7, which had sought to bar judicial review of the Speaker's decisions, holding this violated the basic structure. The Court held that the Speaker's decisions, while entitled to finality within the legislature, remain subject to limited judicial review on grounds such as mala fides, perversity, or violation of constitutional mandate.
Key Details
- In Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly (2020), arising from prolonged inaction on disqualification petitions in the Manipur Assembly, the Supreme Court directed that Speakers must ordinarily decide Tenth Schedule disqualification petitions within three months, absent exceptional circumstances, and suggested Parliament consider replacing the Speaker with an independent tribunal, headed by a retired judge, for such adjudication.
- In Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), arising from the 2022 split within the undivided Shiv Sena, the Supreme Court examined the Speaker's handling of related disqualification and merger questions and the recognition of a party's "real" faction, while leaving the underlying Tenth Schedule adjudication to the Speaker, reiterating that courts intervene on legality and delay rather than substituting their own view of the merits.
- Collectively, this line of cases establishes that courts defer to the Speaker's primary adjudicatory role under the Tenth Schedule, while retaining supervisory jurisdiction to ensure timely and lawful decision-making.
The Supreme Court's decision to issue notice while declining an interim stay reflects this settled approach — allowing the Speaker's decision to stand provisionally while examining, through the ordinary hearing process, whether it meets the Tenth Schedule's substantive merger threshold and procedural safeguards recognised since Kihoto Hollohan.
- Tenth Schedule inserted by the Constitution (Fifty-Second Amendment) Act: 1985.
- Merger exception threshold under Paragraph 4(2): two-thirds of the legislature party's members.
- "Split" exception under the original Paragraph 3: deleted by the Constitution (Ninety-First Amendment) Act, 2003.
- Kihoto Hollohan v. Zachillhu: decided 1992; upheld the Tenth Schedule's validity, struck down Paragraph 7 (ouster of judicial review).
- Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly: decided 2020; set a broad three-month timeline for Speakers to decide disqualification petitions and proposed an independent tribunal.
- Subhash Desai v. Governor of Maharashtra: decided 2023; arose from the 2022 Shiv Sena split.
- Article 94: governs removal of the Speaker, requiring a majority resolution of all then members after 14 days' notice — a distinct process from Paragraph 6 adjudication.