Context
- The Supreme Court has sought the Union Government’s response to a petition challenging the interpretation of the “merger” exception under the Tenth Schedule. The petition questions whether two-thirds of legislators can claim a valid merger without the original political party actually merging.
About Anti-Defection Law (Tenth Schedule)
Background
- Added by the 52nd Constitutional Amendment Act, 1985.
- Incorporated as the Tenth Schedule of the Constitution.
- Enacted to curb political defections (“Aya Ram, Gaya Ram”) and ensure stability in elected governments.
Grounds for Disqualification
A legislator can be disqualified if he/she:
- Voluntarily gives up membership of the political party.
- Votes or abstains contrary to the party whip without prior permission.
- An independent member joins a political party after election.
- A nominated member joins a political party after six months from taking oath.
Who Decides?
- The Speaker (Legislative Assembly) or Chairman (Rajya Sabha/Legislative Council) decides disqualification petitions.
- The decision is subject to judicial review (Kihoto Hollohan Case, 1992).
Merger Exception (Paragraph 4 of Tenth Schedule)
A legislator is not disqualified if:
- Not less than two-thirds of the legislators of a political party agree to merge with another political party.
- Such members are deemed to have accepted a valid merger.
Current Constitutional Issue
- The original political party itself must merge with another party.
- Merely two-thirds of legislators deciding to join another party should not automatically qualify as a valid merger.
- The present interpretation may encourage mass defections under the guise of mergers.
91st Constitutional Amendment Act, 2003
- Deleted the provision of “split” (earlier allowed if one-third members defected).
- Retained only the merger exception under Paragraph 4.
- Strengthened anti-defection provisions.
Criticisms of the Anti-Defection Law
- Speaker may act partisan in deciding petitions.
- Delay in deciding disqualification cases.
- Restricts legislators’ freedom of expression.
- Merger provision may be misused for political realignments.
Important Supreme Court Judgments
- Kihoto Hollohan v. Zachillhu (1992)
- Upheld the constitutional validity of the Anti-Defection Law.
- Held that the Speaker’s decision is subject to judicial review.
- Keisham Meghachandra Singh v. Speaker (2020)
- Recommended Speakers decide disqualification petitions within three months.
- Shrimanth Balasaheb Patil Case (2019)
- Reaffirmed the Speaker’s power regarding disqualification while allowing judicial scrutiny.
| Important CTC from this article for UPSC: Anti-Defection Law |
Q. With reference to the Anti-Defection Law in India, consider the following statements:
1. The Anti-Defection Law was inserted into the Constitution through the 52nd Constitutional Amendment Act, 1985.
2. The 91st Constitutional Amendment Act, 2003 abolished the provision relating to split while retaining the merger provision.
3. The decision of the Speaker under the Tenth Schedule is completely immune from judicial review.
Which of the statements given above is/are correct?
A. 1 and 2 only
B. 2 and 3 only
C. 1 and 3 only
D. 1, 2 and 3
Answer: A. 1 and 2 only
Statement 1 is Correct: The Anti-Defection Law was introduced through the 52nd Constitutional Amendment Act, 1985, which inserted the Tenth Schedule into the Constitution to curb political defections.
Statement 2 is Correct: The 91st Constitutional Amendment Act, 2003 strengthened the Anti-Defection Law by:
• Removing the exemption for splits (one-third members).
• Retaining the merger provision, where at least two-thirds of the legislators of a legislature party must agree to a merger to avoid disqualification.
Statement 3 is Incorrect: The Speaker's decision is not final in the absolute sense. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court held that the Speaker's decision under the Tenth Schedule is subject to judicial review on grounds such as mala fides, constitutional violations, or procedural irregularities.