Manish Tewari submits adjournment notice in Lok Sabha seeking discussion on new anti-defection law to curb opportunistic mass defections
A notice for an adjournment motion was submitted in the Lok Sabha seeking to suspend Question Hour, Zero Hour, and other listed business for an urgent discussion on the "contours of a new Anti-Defection Law"
The notice proposed a law that would proscribe mass political defections driven by opportunism while simultaneously protecting the constitutional right of elected representatives to express principled dissent
Several other legislative items, including the Taxation and Other Laws (Amendment) Bill, were listed on the day's business
The notice reflects a recurring legislative concern over whether the existing Tenth Schedule adequately distinguishes opportunistic floor-crossing from genuine political realignment
The Tenth Schedule (Anti-Defection Law) — 52nd Amendment, 1985
The Tenth Schedule was inserted into the Constitution by the 52nd Constitutional Amendment Act, 1985, to disqualify members of Parliament and state legislatures who defect from the party on whose ticket they were elected, aiming to curb the political instability caused by large-scale floor-crossing in the 1960s-70s.
Key Details
- Grounds for disqualification (Paragraph 2): a member "voluntarily gives up" membership of their party, or votes/abstains contrary to a party whip's direction without prior permission and without condonation within 15 days
- The Speaker (Lok Sabha) or Chairman (Rajya Sabha/State Legislative Council) is the deciding authority under Paragraph 6, and in state assemblies the Speaker of the Legislative Assembly
- Independent members are disqualified if they join a party after election; nominated members are disqualified if they join a party after six months
- The law applies distinctly from a no-confidence motion or a censure motion — it is not about testing government support on the floor but about penalising an individual member's exit from their electoral mandate
The proposed new law would operate within or alongside this Tenth Schedule framework; the core policy question is whether current disqualification triggers and enforcement timelines are adequate to stop coordinated mass defections.
Kihoto Hollohan v. Zachillhu (1992)
This Constitution Bench judgment upheld the validity of the Tenth Schedule as a reasonable restriction on membership rights but held that the Speaker's adjudicatory function is subject to judicial review, correcting an attempt by the original law to insulate such decisions entirely.
Key Details
- By a 3:2 majority, the Court struck down Paragraph 7 of the Tenth Schedule, which had barred courts from reviewing the Speaker's disqualification decisions, holding that ousting judicial review offends the basic structure of the Constitution
- The Speaker's decision was held to function as a tribunal and remains open to judicial review on grounds such as mala fide exercise of power, perversity, or violation of constitutional mandates
- The Court also upheld the Tenth Schedule's classification of "voluntarily giving up membership" as distinct from formal resignation, allowing conduct (such as public anti-party statements) to constitute defection
Any new anti-defection framework would have to operate consistently with this precedent — a law that tries to exclude judicial review of disqualification decisions, as the original Tenth Schedule attempted, would face the same constitutional infirmity.
91st Constitutional Amendment Act, 2003 — Closing the "Split" Loophole
The 91st Amendment tightened the Tenth Schedule by removing the "split" exception that had earlier protected one-third of a legislature party's members from disqualification if they broke away together, restricting the surviving exception to a genuine two-thirds merger.
Key Details
- Prior to 2003, Paragraph 3 exempted a "split" involving one-third of a legislature party's members from disqualification; this was frequently used to engineer defections and was removed by the 91st Amendment (enacted 2003, in force from 2004)
- The surviving exception under Paragraph 4 protects members only where their original political party itself merges with another party, and at least two-thirds of the legislature party members agree to the merger
- The 91st Amendment also inserted Articles 75(1B), 164(1B), and 361B, barring a disqualified member from holding a ministerial or remunerative political post until re-elected or until the end of the original term
- In practice, the two-thirds "merger" exception has itself become a contested route for large-scale defections, since it can be invoked even where no genuine merger occurs at the parent party's national level, prompting renewed calls for reform
The proposed new law's target — "opportunistic mass defections" — is precisely the pattern that survived the 2003 tightening, since a coordinated exit by two-thirds of a legislature party can still claim the merger exception even without ideological or policy grounds.
Speaker's Adjudicatory Delay and Time-Bound Disqualification
Litigation over disqualification petitions has repeatedly turned on delay by Speakers in deciding cases, an issue on which the Tenth Schedule itself is silent regarding a decision deadline.
Key Details
- The Tenth Schedule prescribes no fixed time limit within which the Speaker must decide a disqualification petition, and prolonged inaction has allowed defecting members to continue functioning, sometimes for months or years, before a ruling
- In Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), the Supreme Court reaffirmed that the Speaker remains the sole authority to adjudicate disqualification petitions but emphasised the constitutional expectation of prompt action
- Various parliamentary committees, including earlier Law Commission reports, have recommended either a fixed timeline (such as three months) for Speaker decisions or shifting the adjudicatory function to an independent tribunal or the Election Commission to reduce conflict-of-interest concerns, since the Speaker is typically drawn from the ruling side
Any redesign of the anti-defection framework, as sought in the adjournment motion, would need to address this enforcement gap, since a well-drafted disqualification ground is ineffective without a binding timeline for decision.
- Tenth Schedule inserted by: 52nd Constitutional Amendment Act, 1985
- Split exception (one-third) removed by: 91st Constitutional Amendment Act, 2003 (in force 2004)
- Surviving merger exception threshold: two-thirds of legislature party members
- Landmark case upholding Tenth Schedule but striking down ouster of judicial review: Kihoto Hollohan v. Zachillhu (1992), 3:2 majority
- Deciding authority for disqualification: Speaker (Lok Sabha/Legislative Assembly) or Chairman (Rajya Sabha/Legislative Council) under Paragraph 6
- No statutory/constitutional deadline currently exists for a Speaker's decision on a disqualification petition
- Adjournment motion in Lok Sabha requires support of at least 50 members for admission and is available only in the Lok Sabha, not the Rajya Sabha