Supreme Court Declines to Stay Speaker's Recognition of Shiv Sena MPs' Merger: Tenth Schedule Questions
The Supreme Court declined to grant an interim stay on the Lok Sabha Speaker's decision recognising the merger of six Shiv Sena (UBT) Members of Parliament with the Shiv Sena faction led by Eknath Shinde
The Speaker had approved the merger on July 18, ahead of the Monsoon Session of Parliament, a decision that reduced Shiv Sena (UBT)'s Lok Sabha strength to three members while raising the Shinde-led faction's strength to 13
The Court issued notice to the Lok Sabha Speaker's office and to the six MPs on a petition challenging the recognition, and posted the matter for further hearing after two weeks
The petition argues that no valid merger of the "original political party" had taken place under the Tenth Schedule, so the legislature party group could not claim the merger exemption from disqualification
Tenth Schedule Paragraph 4: The Merger Exception to Anti-Defection
The Tenth Schedule, inserted by the 52nd Amendment Act, 1985, disqualifies a legislator for voluntarily giving up membership of their political party or voting against a party whip on specified matters, subject to limited exceptions. Paragraph 4 is the sole surviving group-exit exception: it protects members from disqualification only where a genuine merger of the "original political party" has occurred.
Key Details
- Under Paragraph 4(1) and 4(2), a merger is deemed to have taken place only if at least two-thirds of the members of a party's legislature party have agreed to the merger with another political party
- The earlier "split" exception under Paragraph 3 — which had protected a breakaway group representing at least one-third of a party's legislators — was deleted entirely by the 91st Amendment Act, 2003, leaving the two-thirds merger route as the only way a group of legislators can change political affiliation without inviting disqualification
- The Speaker (for the Lok Sabha) or the Chairman (for the Rajya Sabha and state legislative bodies) is the authority empowered to decide disqualification and merger questions under Paragraph 6 of the Tenth Schedule
- In Rajendra Singh Rana v. Swami Prasad Maurya (2007), the Supreme Court held that recognising a "split" or realignment that does not actually satisfy Paragraph 4's merger conditions amounts to a reviewable impropriety, even though the Speaker otherwise has discretion in such matters
The petition's central claim is that the six MPs' realignment does not meet the Paragraph 4 threshold because no genuine merger of the "original" Shiv Sena occurred, framing the dispute as a test of whether the Speaker correctly applied the two-thirds merger exception rather than improperly protecting what is, in substance, a disqualifiable defection.
Kihoto Hollohan v. Zachillhu (1992): Judicial Review of the Speaker's Quasi-Judicial Role
The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) upheld the constitutional validity of the Tenth Schedule but held that the Speaker or Chairman acts as a quasi-judicial tribunal while deciding disqualification and merger questions, which makes such decisions subject to judicial review, notwithstanding the Tenth Schedule's attempt to oust court jurisdiction.
The Court's refusal to stay the Speaker's recognition, combined with issuing notice and seeking a response, reflects this established pattern — deference to the Speaker's quasi-judicial role at the interim stage, paired with continuing scrutiny of whether the decision meets the Tenth Schedule's substantive and procedural requirements.
Distinguishing the Speaker's Tenth Schedule Role from Removal Under Article 94
This dispute concerns the Speaker's adjudicatory power under the Tenth Schedule, a role that is constitutionally and procedurally distinct from questions about the Speaker's own tenure or removal — a distinction UPSC frequently tests through comparison-style questions.
Key Details
- Article 94 governs removal of the Speaker, requiring a resolution passed by a majority of all the then members of the Lok Sabha, moved after at least fourteen days' notice
- The Speaker's power to decide Tenth Schedule disqualification and merger questions instead derives from Paragraph 6 of the Tenth Schedule, a wholly separate constitutional source of authority
- The analogous adjudicatory power in the Rajya Sabha and state legislative councils vests in the Chairman, while the power of removal of the Rajya Sabha Chairman (the Vice-President) follows the distinct procedure under Article 67(b)
The current challenge does not question the Speaker's tenure or fitness to hold office — it questions a specific quasi-judicial determination made under the Tenth Schedule, a separate constitutional function often conflated with, but legally distinct from, the Speaker's removal process.
- Six Shiv Sena (UBT) MPs whose merger was recognised: Sanjay Jadhav, Sanjay Patil, Sanjay Deshmukh, Omraje Nimbalkar, Nagesh Patil Ashtikar, and Bhausaheb Wakchaure
- Speaker's recognition of the merger: July 18, 2026, ahead of the Monsoon Session of Parliament
- Resulting Lok Sabha strength: Shiv Sena (UBT) reduced to 3 MPs; Shinde-led Shiv Sena increased to 13 MPs (from 7)
- Tenth Schedule inserted by the 52nd Amendment Act: 1985
- Paragraph 3 "split" exception deleted by the 91st Amendment Act: 2003
- Merger threshold under Paragraph 4(2): two-thirds of the legislature party's members
- Bench hearing the matter: Justices P.S. Narasimha and Alok Aradhe; next hearing listed after two weeks