The anti-defection law in practice: the 91st Amendment and the courts

Detail

Background: what the Tenth Schedule does

• Defection means a legislator leaving the party on whose ticket they won, or going against its orders inside the House. In the 1960s and 1970s this was mocked as "Aya Ram, Gaya Ram".
• The 52nd Amendment Act, 1985 added the Tenth Schedule (the anti-defection law). Members of Parliament can be disqualified under Art. 102(2). Members of state legislatures can be disqualified under Art. 191(2).
• Grounds for disqualification:
• Para 2(1)(a): the member voluntarily gives up membership of the party. Courts have held that a member's conduct, and not only a formal resignation, can show this.
• Para 2(1)(b): the member votes or abstains against the party whip without permission, and the party does not forgive (condone) it within 15 days. A whip is the party's written order to its members on how to vote.
• Para 2(2): an independent member joins a party after the election.

• Para 2(3): a nominated member joins a party more than 6 months after taking their seat.

• Para 6: the Speaker or Chairman decides disqualification cases. The Speaker acts only on a petition from another member of the House.

• Stated purpose: stable governments, and respect for the voter who chose a party's candidate (NCERT Class 9 and Class 10).
• Cost: a legislator cannot vote against the party leadership, even on conscience. This weakens dissent inside parties (NCERT Class 10).

Split and merger: the two exceptions

Feature	Split (para 3)	Merger (para 4)
What it meant	A breakaway group of at least one-third of a legislature party could form a separate group without being disqualified	No disqualification if the original party merges with another party and at least two-thirds of the legislature party agree
Status	Deleted by the 91st Amendment, 2003	Still in force
Effect in practice	Individual defections became group defections. Goa had seven Chief Ministers between 1990 and 2000 because of bulk defections [3]	Used for "engineered mergers" in which legislators move without the party organisation merging at all

• Legislature party: the members of one party sitting in a House. It is different from the political party, which is the full organisation outside the House.
• Unsettled point on merger: must the original party actually merge, or is the vote of two-thirds of its legislators enough? Speakers have usually treated two-thirds of the legislators as enough.
• Merger examples:
• Goa, July 2019: 10 of 15 Congress MLAs joined the BJP.
• Goa, September 2022: 8 of 11 Congress MLAs joined the BJP.

• Rajasthan, September 2019: all 6 BSP MLAs joined the Congress.

• The Law Commission's 170th Report (1999) recommended deleting both the split and the merger provisions [3]. Parliament deleted only the split.

• Rajendra Singh Rana v. Swami Prasad Mourya (Constitution Bench, 2007):
• The case was about BSP MLAs in Uttar Pradesh who claimed a "split" in 2003.
• The Court rejected the split claim. A split had to exist at the time of defection; it could not be put together later from a series of individual exits.
• It held that a Speaker's failure to decide a disqualification petition is itself open to judicial review (the power of courts to examine whether an action of the state is lawful).
• The Constitution Bench then decided the disqualification question itself [2].

The 91st Constitutional Amendment Act, 2003

Provision	Change
Tenth Schedule, para 3	Split exception deleted
Art. 75(1A)	The Union Council of Ministers, including the PM, cannot exceed 15% of the total members of the Lok Sabha
Art. 164(1A)	A state Council of Ministers, including the CM, cannot exceed 15% of the Assembly, and cannot have fewer than 12
Arts. 75(1B), 164(1B)	A member disqualified for defection cannot become a minister until the end of their term, or until they are re-elected, whichever comes first
Art. 361B	A disqualified defector cannot hold any remunerative political post (a paid government office whose salary comes from public funds) for the same period

• Why the cap on ministers matters: ministerial posts had been the main reward for defecting. Limiting the number of posts reduced the reward.

Kihoto Hollohan v. Zachillhu (Constitution Bench, 1992, 3:2)

• Tenth Schedule upheld:
• It does not breach legislators' freedom of speech in the House.

• It does not breach the basic structure (the core features of the Constitution, such as democracy, that even an amendment cannot destroy).

• Para 7 struck down:

• Para 7 stopped all courts from hearing defection cases.
• It changed the powers of the High Courts and the Supreme Court. Under Art. 368(2), such an amendment needs ratification (approval) by at least half of the state legislatures.

• Ratification was never obtained, so para 7 was void. It was severed (cut out), and the rest of the Schedule survived.

• The Speaker is a tribunal:

• When deciding under para 6, the Speaker acts as a tribunal (a body that decides disputes the way a court does).
• Its decisions can be challenged under Arts. 136, 226 and 227.

• It cannot claim the immunity of House proceedings under Arts. 122 and 212 [2].

• Limited judicial review. Courts can step in only for:

• lack of jurisdiction (acting beyond legal power);
• mala fides (bad faith);
• breach of natural justice (for example, no fair hearing);

• perversity (a decision no reasonable person could reach).

• No interference before a decision: courts cannot stop a Speaker in the middle of a case. They can review only the final order.

• Minority opinion (J.S. Verma J.): would have struck down the whole Schedule. A Speaker owes the post to the majority party, so cannot be an independent adjudicator (a neutral judge).
• Every later case is an attempt to deal with this concern about Speaker bias.

Delay and misuse by Speakers: the later cases

1. Nabam Rebia v. Deputy Speaker (Constitution Bench, 2016, Arunachal Pradesh)

• Rule: a Speaker who faces a notice of removal cannot decide disqualification petitions until the removal question is settled.
• Misuse: in the Maharashtra crisis of 2022, rebels sent such a notice to the Deputy Speaker to stop disqualification proceedings against them.
• In Subhash Desai (2023), the Court referred the correctness of Nabam Rebia to a seven-judge bench.

2. Shrimanth Balasaheb Patil v. Speaker, Karnataka (November 2019)

• 17 Congress and JD(S) MLAs resigned in July 2019, and the Kumaraswamy government fell. That government had lasted about 13 months [3].
• The Speaker rejected their resignations as not voluntary and disqualified them until the end of the Assembly's term.
• The Supreme Court upheld the disqualification. It held that a Speaker can examine whether a resignation is voluntary and genuine.
• But the Speaker cannot bar them from contesting elections for the rest of the term. Most of them contested the by-elections of December 2019.

3. Keisham Meghachandra Singh v. Speaker, Manipur (21 January 2020)

• A Congress MLA had become a BJP minister in Manipur. The disqualification petitions against him stayed pending for years.
• Holding: Speakers should decide disqualification petitions within about three months, unless there are exceptional reasons.
• The bench of R.F. Nariman and S. Ravindra Bhat JJ. asked Parliament to "seriously consider" replacing the Speaker with a permanent Tribunal headed by a retired Supreme Court Judge [3].
• March 2020: the Speaker still had not decided. Using Art. 142 (the Supreme Court's power to do "complete justice"), the Court itself removed the minister, Th. Shyamkumar, from the Cabinet and barred him from the Assembly.

4. Subhash Desai v. Principal Secretary, Governor of Maharashtra (Constitution Bench, 11 May 2023)

• Whip: the political party, not the legislature party, appoints the whip and the party leader in the House. The Speaker had wrongly recognised the whip chosen by the Shinde group.
• Who decides: the Speaker must decide the disqualification petitions first. The Court would not decide them itself.
• Governor: the Governor erred in calling a floor test (a vote in the Assembly to check whether the government still has a majority). He had no objective material showing that the government had lost its majority. A split inside a party cannot be the basis for a floor test.
• No restoration: Uddhav Thackeray had resigned without facing the floor test. So his government could not be restored.
• What followed: Speaker Rahul Narwekar ruled that the Shinde faction was the real Shiv Sena (10 January 2024) and the Ajit Pawar faction was the real NCP (February 2024). No MLA on either side was disqualified.

5. Padi Kaushik Reddy v. State of Telangana (2025 INSC 912, 31 July 2025; CJI B.R. Gavai and Justice Augustine George Masih)

• Facts: BRS MLAs began joining the Congress from 15 March 2024 [2].
• Disqualification petitions were filed on 18 March, 2 April and 8 April 2024 [2].

• The Speaker issued notices only on 16 January 2025, more than seven months later. This was the day after the case reached the Supreme Court [2].

• Path through the courts:

• A single judge of the Telangana High Court (9 September 2024) asked the Speaker only to fix a hearing schedule within four weeks.
• A Division Bench set this order aside on 22 November 2024.

• The Supreme Court restored the single judge's view [2].

• Directions:

• The Speaker must decide the petitions against the 10 MLAs within three months of the judgment [2].

• The Speaker must not let any MLA protract (drag out) the proceedings, and must draw an adverse inference (assume the worst) against any MLA who tries [2].

• Remedy: the Court refused to decide the cases itself, as it had in Rajendra Singh Rana. From Kihoto Hollohan to Subhash Desai, Constitution Benches have held that the Speaker decides first [2].

• "Operation successful, patient died": the Court warned that without a direction the Speaker would repeat this outcome. Proceedings would formally continue while the defectors served out the full term [2].
• Message to Parliament: Parliament should consider whether leaving these decisions to the Speaker "is serving the purpose of effectively combating political defections" [2].

Tactics used to get around the law

Tactic	How it works	Example
Mass resignations	MLAs resign instead of defecting. This lowers the strength of the House and the number needed for a majority. They then win by-elections on the new party's ticket	Karnataka 2019 (17 MLAs); Madhya Pradesh March 2020 (22 Congress MLAs; the Kamal Nath government fell after about 13 months [3])
Resort politics	MLAs are kept together in a hotel, often in another state, to stop the other side from contacting them before a floor test	Karnataka 2019, Madhya Pradesh 2020, Maharashtra 2022
Engineered mergers	Two-thirds of a legislature party "merge" with another party under para 4, though the party organisation never merges	Goa 2019 and 2022; Rajasthan 2019
Speaker inaction	The Speaker sits on petitions until the House's term ends	Manipur (Keisham, 2020); Telangana (Padi Kaushik Reddy, 2025)
Removal notice	A notice against the Speaker freezes disqualification cases under Nabam Rebia	Maharashtra 2022

Reform options

Proposal	Proposed by
Take the decision away from the Speaker. The President or Governor decides on the advice of the Election Commission	Dinesh Goswami Committee (1990) recommended removing this role from Speakers [3]; Election Commission; 2nd ARC (4th Report, Ethics in Governance, 2007)
Delete both split and merger, and treat pre-poll alliances as one party	Law Commission, 170th Report (1999) [3]
Do not count a defector's vote when deciding whether a government survives	NCRWC (2002) [3]
A permanent independent tribunal headed by a retired SC judge	Keisham (2020) [3]
Binding time limits for deciding petitions	Keisham (about three months); Padi Kaushik Reddy (three months, set by the court) [2]
Limit whips to confidence motions and money bills (bills only about taxes, borrowing or spending)	Law Commission 170th Report (1999); Election Commission; private members' bills in Parliament
Bar defectors from contesting or holding office for the rest of the term	Proposed after Karnataka 2019. The Court ruled in Shrimanth Balasaheb Patil that only Parliament can impose such a bar

• The trade-off:
• For a strict law: stable governments and respect for the voter's choice of party (NCERT Class 9). It also makes it harder to buy and sell legislators.
• Against a strict law: whips on every vote turn MPs into "voting machines". They limit deliberation and dissent inside parties (NCERT Class 10). Parties are not internally democratic, so this concentrates power in party leaders.
• Instability continues anyway: governments still fell in Karnataka in 2019, Madhya Pradesh in 2020 and Maharashtra in 2022, through resignations and mergers [3]. The law has shifted defections into new forms rather than stopping them.

Prelims Hooks

• 91st Amendment, 2003: deleted the one-third split (para 3). It capped ministers at 15% of the House (Arts. 75(1A), 164(1A)), with a minimum of 12 in states. It added Art. 361B (no remunerative political post for a disqualified defector).
• Merger exception (para 4) needs two-thirds of the legislature party. The old split needed one-third. Trap: only the split was deleted. The merger exception still exists.
• Kihoto Hollohan (1992, 3:2): Tenth Schedule upheld. Para 7 struck down for lack of state ratification under Art. 368(2). Speaker is a tribunal whose decisions courts can review. Dissent: J.S. Verma J.
• The Speaker deciding under para 6 cannot claim immunity under Arts. 122 or 212 [2].
• Nabam Rebia (2016): a Speaker facing a removal notice cannot decide disqualification petitions. Referred to a seven-judge bench in Subhash Desai (2023).
• Keisham Meghachandra Singh (2020): decide within about three months. Suggested a permanent tribunal headed by a retired SC judge.
• Subhash Desai (2023): the political party, not the legislature party, appoints the whip.
• Shrimanth Balasaheb Patil (2019): disqualification of 17 Karnataka MLAs upheld, but the Speaker cannot bar them from contesting until the end of the term.
• Padi Kaushik Reddy (31 July 2025): Telangana Speaker to decide on 10 BRS MLAs within three months. Adverse inference against MLAs who drag out proceedings [2].
• Law Commission 170th Report (1999): delete both split and merger [3]. Dinesh Goswami Committee (1990): take the decision away from the Speaker [3].

Mains Points

• The Speaker as judge is the core flaw.
• From the Verma J. dissent in Kihoto Hollohan (1992) to Keisham (2020) and Padi Kaushik Reddy (2025), courts have pointed to partisan delay.
• Courts have responded with time limits and, in Manipur in 2020, removal of a minister under Art. 142.

• But courts still say the Speaker must decide first [2]. A lasting fix needs Parliament: an independent tribunal, or the President or Governor deciding on the ECI's advice (Goswami, 2nd ARC).

• The law has moved defections into new forms rather than ending them.

• The 91st Amendment closed the one-third split.
• Mass resignations (Karnataka 2019, MP 2020), engineered mergers (Goa 2019 and 2022) and Governor-called floor tests (Maharashtra 2022) took its place.

• Possible answers: delete the merger clause (Law Commission, 1999), do not count a defector's vote (NCRWC), and bar defectors from office for the full term.

• Party discipline vs. legislators' freedom.

• Whips on every vote stop MPs from voting on conscience or for their constituency, and weaken debate.
• Limiting whips to confidence motions and money bills would keep governments stable while restoring deliberation.

• Pair this with internal democracy in parties: Subhash Desai gave the party organisation, not its legislators, the power to appoint the whip.

• The Governor and the floor test.

• Subhash Desai (2023) held that a Governor needs objective material before calling a floor test.
• But the ruling also showed that the Court could not undo the harm once the CM had resigned. This supports clear rules on how Governors use their discretion (as Sarkaria and Punchhi also recommended).