Tenth Schedule of the Constitution of India: Anti-Defection Law

Meaning and Scope of the Tenth Schedule

Articles 102(2) and 191(2) connect the Tenth Schedule with membership of Parliament and State Legislatures. A member may incur disqualification under the Schedule for conduct such as voluntarily giving up membership of the political party to which the member belongs for Tenth Schedule purposes, or voting or abstaining contrary to an applicable party direction without prior permission where the act is not condoned within fifteen days.

The Schedule also separately addresses independent members and nominated members. An elected independent member is disqualified if the member joins a political party after the election. A nominated member is disqualified if the member joins a political party after six months from the date on which the member takes the seat, subject to the detailed deeming provisions in paragraph 2.

Paragraph 1 - Interpretation

Paragraph 2 - Disqualification on Ground of Defection

Member belonging to a political party

Subject to paragraphs 4 and 5, a member belonging to a political party is disqualified if the member voluntarily gives up membership of that party, or votes or abstains from voting in the House contrary to a direction issued by that political party or an authorised person or authority, without prior permission, and the voting or abstention is not condoned within fifteen days.

How party membership is treated

An elected member is deemed to belong to the political party that set the member up as a candidate. A nominated member who belongs to a political party on the date of nomination is deemed to belong to that party. In other cases, the Schedule applies the special six-month rule for a nominated member who joins a political party after taking the seat.

Independent member

An elected member who was elected otherwise than as a candidate set up by a political party is disqualified if the member joins a political party after the election.

Nominated member

A nominated member is disqualified if the member joins a political party after the expiry of six months from the date on which the member takes the seat after complying with Article 99 or Article 188, as applicable.

Paragraph 3 - Omitted: No Separate Split Exception

Paragraph 4 - Disqualification Not to Apply in Case of Merger

A member is not disqualified under paragraph 2(1) where the member's original political party merges with another political party and the member, along with other members, becomes a member of the other political party or of a new political party formed by the merger, or does not accept the merger and opts to function as a separate group.

For this protection, the merger of the original political party is deemed to have taken place only if not less than two-thirds of the members of the legislature party concerned have agreed to the merger.

Paragraph 5 - Exemption for Certain Presiding Officers

Paragraph 5 provides a limited exemption for specified presiding officers, including the Speaker or Deputy Speaker of the Lok Sabha, Deputy Chairman of the Rajya Sabha, and specified presiding officers of State Legislatures. The protection operates in the circumstances stated in the Schedule when such a person gives up party membership by reason of election to the office and, while continuing in that office, does not rejoin that party or join another political party. It also addresses rejoining the former party after ceasing to hold the office.

Paragraph 6 - Decision on Questions of Disqualification

Where a question arises as to whether a member has become subject to disqualification under the Tenth Schedule, paragraph 6 refers the question to the Chairman or Speaker of the House. If the question concerns the Chairman or Speaker, it is referred to a member elected by the House for that purpose.

Proceedings under paragraph 6(1) are deemed to be proceedings in Parliament within Article 122 or proceedings in a State Legislature within Article 212, as applicable.

Paragraph 7 - Bar of Court Jurisdiction and Present Legal Position

The printed text of paragraph 7 states that no court shall have jurisdiction in respect of a matter connected with disqualification under the Tenth Schedule. However, the Supreme Court in Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, held paragraph 7 invalid because the constitutional amendment had not received the State ratification required for a provision affecting Articles 136, 226 and 227.

The remaining provisions of the Tenth Schedule were held severable. The Speaker or Chairman exercises adjudicatory power under paragraph 6, and the resulting decision is subject to judicial review on constitutionally recognised grounds. The existence of the "final" language in paragraph 6 does not create an absolute exclusion of the jurisdiction of the Supreme Court and High Courts.

Paragraph 8 - Rules

The Chairman or Speaker may make rules to give effect to the Tenth Schedule. These may deal with records of political-party membership, reports concerning condonation of voting or abstention, reports concerning admission of members to political parties, and procedure for deciding questions under paragraph 6.

Rules made under paragraph 8 are required to be laid before the House for the constitutionally specified period. Paragraph 8 also permits the Chairman or Speaker, subject to Articles 105 or 194 and other constitutional powers, to direct that wilful contravention of such rules may be dealt with in the same manner as a breach of privilege of the House.

Practical Summary of the Anti-Defection Rules

The present constitutional scheme focuses on whether a legislator has voluntarily given up party membership, disobeyed an applicable party voting direction without the required permission and condonation, joined a political party after being elected as an independent, or joined a political party outside the permitted period as a nominated member. The former one-third split defence no longer exists. Paragraph 4 provides the merger framework based on the two-thirds threshold.

Disqualification questions are initially decided through the constitutional mechanism in paragraph 6. Judicial review remains available in accordance with Supreme Court precedent; paragraph 7 does not operate as an absolute bar.

Official and Judicial References

For authoritative text and later amendments, refer to the Legislative Department, Ministry of Law and Justice - Constitution of India. For judgments and case status, use the Supreme Court of India.

This page is an informational legal article. For a specific disqualification dispute, the applicable constitutional text, House rules, pleadings, orders and current judicial precedents should be examined together.