Six MPs, One Paragraph: The Merger Exception the Anti-Defection Law Still Leaves Open
The Speaker's clearance of a Shiv Sena (UBT) merger turns on Paragraph 4 of the Tenth Schedule — the one escape route the 91st Amendment did not close
What happened
Every discussion of the anti-defection law reaches the same conclusion — that it stops small defections and permits large ones — and this decision is that conclusion in operation. An aspirant should read it as a live illustration of Paragraph 4, the merger exception, and of the deeper structural question the Tenth Schedule has never resolved: whether a presiding officer drawn from the ruling party is the right authority to decide who has defected.
The anti-defection law: what each amendment and judgment changed
Tenth Schedule inserted. Two grounds of disqualification: voluntarily giving up party membership, and defying the whip. Exceptions: one-third split and two-thirds merger.
Schedule upheld, but Paragraph 7 struck down. The presiding officer acts as a tribunal; decisions are subject to judicial review.
One-third split exception DELETED. Only the two-thirds merger exception survives. Defectors barred from office until re-election; Council of Ministers capped at 15%.
Petitions to be decided ordinarily within three months. Court invites Parliament to consider an independent tribunal headed by a retired judge.
Speaker clears merger of six Shiv Sena (UBT) MPs under the surviving Paragraph 4 exception.
Source: Constitution of India, Tenth Schedule; Supreme Court judgments as cited
The Tenth Schedule was inserted by the Constitution (Fifty-second Amendment) Act, 1985 and provides two grounds of disqualification: voluntarily giving up membership of one's party, and voting or abstaining contrary to the party whip without condonation within fifteen days.
●Against those grounds stand the exceptions, and this is where the 91st Amendment of 2003 changed the landscape.
●It deleted the earlier one-third split exception, which had allowed a faction of that size to break away with impunity, leaving only the merger exception in Paragraph 4 — available where not less than two-thirds of the members of the legislature party agree to merge with another party.
●The same amendment barred a disqualified defector from holding ministerial or remunerative political office until re-election, and capped the Council of Ministers at fifteen per cent of the House, with a minimum of twelve in the states.
●The presiding officer decides, subject to judicial review under Kihoto Hollohan v.
●Zachillhu (1992).
The 91st Amendment closed the one-third split door and left the two-thirds merger door open — which is why group defection remains lawful if the group is large enough.
◎ In Simple Words
India has a law that punishes politicians who switch parties after being elected, because voters chose them under one party's label. But the law has an exception: if two-thirds of a party's legislators all move together and call it a merger, none of them is punished. Six members of one party have now been allowed to join another under exactly that rule. So the law stops one person leaving, but allows a large group to do the same thing legally.
Factual Pointers
Practice · 2 questions
With reference to the exceptions to disqualification under the Tenth Schedule, which one of the following statements is correct?
Consider the following statements regarding the adjudication of defection cases:
1. The presiding officer of the House decides questions of disqualification under the Tenth Schedule.
2. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court held that such decisions are final and immune from judicial review.
3. In Keisham Meghachandra Singh (2020), the Court suggested that Parliament consider replacing the Speaker with an independent tribunal headed by a retired judge.
Which of the statements given above are correct?
Mains Practice Questions
The anti-defection law prevents the individual legislator from dissenting while permitting the organised group to defect. Critically examine this asymmetry with reference to Paragraph 4 of the Tenth Schedule.
Should the power to decide disqualification under the Tenth Schedule be removed from the presiding officer of the House? Evaluate the alternatives that have been proposed.
The merger exception measures the size of a defecting group rather than the authenticity of a political union. Discuss whether the two-thirds threshold is an adequate test.
MCQ Practice
3 questions on this article
With trap analysis, approach guide, and UPSC angle
Frequently Asked
· People also askWhat is the merger exception under the anti-defection law?
Paragraph 4 of the Tenth Schedule exempts a legislator from disqualification where the original political party merges with another and not less than two-thirds of the members of that legislature party agree to the merger. It is the only exception surviving after the 91st Amendment of 2003.
GS2 · PolityBefore 2003 a one-third split also protected defectors. Deleting it left the higher two-thirds threshold as the sole lawful route, which is why group defections are now engineered to clear that specific bar.
SOURCE Constitution of India, Tenth Schedule, Paragraph 4
Which amendment removed the split provision from the Tenth Schedule?
The Constitution (Ninety-first Amendment) Act, 2003 deleted the one-third split exception. The same amendment barred disqualified defectors from ministerial or remunerative political office until re-election, and capped the Council of Ministers at fifteen per cent of House strength, with a minimum of twelve in the states.
GS2 · Constitutional amendmentsThe Tenth Schedule itself was inserted earlier, by the 52nd Amendment of 1985. Attributing the ministerial cap to 1985 rather than 2003 is a frequent Prelims error, since the two amendments are studied together.
SOURCE Constitution (Ninety-first Amendment) Act, 2003
Who decides whether a legislator has defected?
The presiding officer — the Speaker in the Lok Sabha or a State Assembly, the Chairman in a Council. In Kihoto Hollohan v. Zachillhu (1992) the Supreme Court held that the presiding officer acts as a tribunal in doing so, and struck down Paragraph 7, which had purported to bar judicial review of that decision.
GS2 · Judiciary and ParliamentBecause the presiding officer is usually a member of the ruling party, this allocation is the Schedule's most criticised feature. Keisham Meghachandra Singh (2020) invited Parliament to consider an independent tribunal headed by a retired judge.
SOURCE Kihoto Hollohan v. Zachillhu (1992)
Is recognition as a parliamentary party the same as protection from disqualification?
No. Recognition governs seating, speaking time, committee places and office allocation under the rules of the House, and is granted by the presiding officer. Disqualification is a separate constitutional question under the Tenth Schedule. A group can be seated separately while its status remains undecided.
GS2 · Parliamentary procedureThis distinction explains how twenty rebel Trinamool Congress members could be given separate seating on 18 July 2026 while their claim to recognition as a distinct parliamentary party stayed pending.
SOURCE Rules of Procedure and Conduct of Business in Lok Sabha
Why is the anti-defection law criticised despite being strengthened in 2003?
Because it penalises the individual legislator who votes against the whip on conscience while permitting a bloc of two-thirds to switch parties entirely. It thereby suppresses legislative dissent — weakening Parliament's scrutiny of the executive — without preventing the organised floor-crossing it was enacted to stop.
GS2 · Parliament and legislative independenceThe timed-resignation route offers a further workaround: a member may resign, contest the resulting by-election on another party's ticket and return, since neither ground of disqualification is triggered by resigning the seat.
SOURCE Constitution of India, Tenth Schedule
Has any time limit been fixed for deciding defection petitions?
The Tenth Schedule prescribes none. In Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020) the Supreme Court held that petitions should ordinarily be decided within three months, but that is a judicial norm rather than a textual requirement, and delay remains a live problem.
GS2 · GovernanceWithout a statutory deadline, a petition can remain undecided until the House's term expires and the question becomes infructuous — an outcome that has occurred repeatedly and that no court order has yet prevented.
SOURCE Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020)