SC takes up Abhishek Banerjee’s plea seeking action against 20 rebel TMC MPs
The Supreme Court agreed to hear a writ petition seeking a time-bound decision from the Lok Sabha Speaker on pending disqualification petitions filed against 20 Members of Parliament under the Tenth Schedule (anti-defection law)
The disqualification petitions arise from an allegation that the 20 MPs, elected on one party's ticket, voluntarily gave up membership of that party by aligning with a different political party after the results were declared
The MPs in question contend that their move constitutes a "merger" of legislature parties, which does not attract disqualification under the Tenth Schedule if it meets the prescribed threshold, while the original party disputes that characterisation
The Court was informed that the Speaker's office had issued notices to the 20 MPs on the disqualification petitions, but had not yet concluded proceedings
The Bench observed that the relevant question was not merely whether notices had been issued, but whether the disqualification proceedings would be concluded within a defined time frame
The Tenth Schedule — Anti-Defection Law (52nd Amendment Act, 1985)
The Tenth Schedule was inserted into the Constitution by the 52nd Amendment Act, 1985 to curb political defections by legislators after elections. It disqualifies a member of Parliament or a state legislature on specified grounds of defection, and vests the decision-making power on disqualification questions in the Speaker or Chairman of the House concerned.
Key Details
- A member is disqualified if they "voluntarily give up membership" of the political party on whose ticket they were elected, or if they vote/abstain contrary to a party whip without prior permission and the act is not condoned within 15 days
- The Speaker or Chairman is the deciding authority under Paragraph 6 of the Tenth Schedule; the decision was originally made final and beyond judicial review under Paragraph 7
- Nominated members and independents are covered by separate, narrower disqualification grounds under the Schedule
- The 91st Amendment Act, 2003 further tightened the law by omitting the earlier "split" exception (which had permitted disqualification-free defection by one-third of a legislature party) and capping the size of ministries
The pending disqualification petitions against the 20 MPs are being decided under this Tenth Schedule framework, with the core dispute being whether their conduct falls under the disqualifying ground of "voluntarily giving up membership" or the protected ground of a valid "merger."
Kihoto Hollohan v. Zachillhu (1992) — Judicial Review of the Speaker's Decision
A five-judge 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 disqualification decisions. The Court held that the Speaker functions as a tribunal while deciding such matters and is therefore subject to judicial review on limited grounds.
Key Details
- Judicial review was held permissible only on grounds of mala fides, perversity, violation of natural justice, or infirmities based on constitutional mandate — not on the merits generally
- The Court also held that judicial review would ordinarily only be available after the Speaker has taken a final decision, not at an interlocutory stage — a principle later refined by subsequent rulings addressing undue delay
- The Speaker was held to act as a quasi-judicial authority while deciding disqualification petitions, distinct from the Speaker's ordinary presiding role in the House
- Paragraph 7 was struck down because it amounted to a bar on the jurisdiction of courts under Articles 136, 226 and 227, which would have required ratification by the states under the proviso to Article 368(2) — ratification that had not been obtained
The Supreme Court's willingness to entertain a petition seeking a time-bound Speaker decision draws on the judicial review power recognised in Kihoto Hollohan — while the Court traditionally waits for a final Speaker decision before reviewing it on merits, delay itself has increasingly been treated as a ground for judicial intervention.
Merger vs. "Voluntarily Giving Up Membership" — Paragraph 4 of the Tenth Schedule
Paragraph 4 of the Tenth Schedule provides an exception to disqualification where a member's original political party merges with another party, provided the merger is deemed to have taken place — a merger is deemed to occur only if not less than two-thirds of the members of the legislature party concerned have agreed to the merger.
Key Details
- If the two-thirds threshold is not met, members who align with another party cannot claim the merger exception and instead risk disqualification for voluntarily giving up membership of their original party
- Courts have interpreted "voluntarily giving up membership" broadly — it need not be an explicit resignation; conduct clearly inconsistent with continued membership (such as prolonged, deliberate association with a rival party) can suffice, as recognised in subsequent case law refining the Tenth Schedule's application
- Distinguishing an outright "merger" of an entire legislature party from individual or partial defections dressed up as a merger claim is a recurring adjudicatory question under Paragraph 4
- In Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly (2020), the Supreme Court directed that disqualification petitions should ordinarily be decided by the Speaker within three months absent exceptional circumstances, and recommended that Parliament consider vesting this quasi-judicial function in an independent tribunal
The central legal question in the pending petitions is whether the 20 MPs' realignment meets the two-thirds merger threshold under Paragraph 4; the writ petition additionally invokes the Keisham Meghachandra Singh timeline principle to argue that continued delay in the Speaker's decision undermines the constitutional mechanism.
- Tenth Schedule inserted by: 52nd Constitutional Amendment Act, 1985
- Deciding authority for MP/MLA disqualification: Speaker (Lok Sabha/State Assembly) or Chairman (Rajya Sabha/State Council)
- Merger exception threshold under Paragraph 4: not less than two-thirds of the legislature party's members
- Landmark case upholding Tenth Schedule and permitting judicial review: Kihoto Hollohan v. Zachillhu (1992)
- Case setting an outer time limit for Speaker's decision (ordinarily 3 months): Keisham Meghachandra Singh v. Speaker, Manipur (2020)
- 91st Amendment Act, 2003 removed the one-third "split" exception previously available under the Tenth Schedule
- Number of MPs whose disqualification is in question in the present matter: 20