Anti-Defection Law in India: Tenth Schedule, Articles 102(2) and 191(2)
India's anti-defection law, contained in the Tenth Schedule of the Constitution, regulates when Members of Parliament and State Legislatures lose their seats for changing political allegiance or defying an authorised party voting direction. The constitutional foundation is found in Articles 102(2) and 191(2).
Origin and constitutional framework
The Constitution (Fifty-second Amendment) Act, 1985 introduced the Tenth Schedule to address political defections. The Constitution (Ninety-first Amendment) Act, 2003 removed the former split defence in paragraph 3 with effect from 1 January 2004. The merger exception in paragraph 4 remains, subject to its specific conditions.
Article 102(2) provides for disqualification of a member of either House of Parliament under the Tenth Schedule. Article 191(2) applies the same principle to members of State Legislative Assemblies and Councils. These provisions operate in addition to other constitutional grounds for disqualification.
Paragraph 1: Definitions
House means either House of Parliament or the Legislative Assembly or either House of a State Legislature, as applicable. Legislature party refers to the group of members of a House belonging to the relevant political party under the Schedule. Original political party is the party to which a member belongs for paragraph 2(1). A paragraph means a paragraph of the Tenth Schedule.
Paragraph 2: When a member is disqualified
Voluntarily giving up party membership
Under paragraph 2(1)(a), a member belonging to a political party is liable to disqualification if the member voluntarily gives up membership. A formal resignation is not always necessary; conduct may establish the voluntary abandonment of party membership, depending on the facts and governing case law.
Voting or abstaining contrary to party direction
Under paragraph 2(1)(b), disqualification can arise where a member votes or abstains contrary to a direction issued by the party or its authorised person or authority, without prior permission, and the conduct is not condoned within 15 days of the vote or abstention.
Independent and nominated members
An independent elected member is disqualified for joining a political party after election under paragraph 2(2). A nominated member is disqualified for joining a political party after six months from taking the seat under paragraph 2(3), subject to the Schedule's rules about party affiliation when nominated and within that initial period.
Paragraph 2(4) contains transitional deeming provisions for persons who were members when the 1985 amendment commenced.
Paragraph 3: Split defence omitted
The former provision protecting certain party splits was omitted by the Ninety-first Amendment. A faction cannot avoid disqualification merely by claiming that a sufficient number of legislators have split from the original party.
Paragraph 4: Merger exception
The Schedule protects members in a qualifying merger of their original political party with another party where the statutory requirements are met. Paragraph 4(2) states that a merger is deemed to have taken place only if not less than two-thirds of the members of the legislature party concerned have agreed to it. The member may join the merged or new party or, as the provision permits, decline the merger and function as a separate group.
The Supreme Court in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023) explained that a mere legislative faction or split cannot be treated as a substitute for the statutory merger defence.
Paragraph 5: Presiding-officer exemption
Specified presiding officers, including Speakers and Deputy Speakers, may relinquish party membership because of election to their constitutional office without incurring disqualification, provided the precise conditions in paragraph 5 are satisfied. The provision also addresses rejoining the former party after leaving office.
Paragraph 6: Who decides disqualification?
The Speaker or Chairman of the House ordinarily decides questions of disqualification. Where the Speaker or Chairman is personally concerned, the matter is referred to a member elected by the House for that purpose. Paragraph 6(2) treats the proceedings as legislative proceedings for purposes of Articles 122 and 212.
Paragraph 7: Judicial review remains available
Although the text of paragraph 7 purported to exclude court jurisdiction, the Supreme Court in Kihoto Hollohan v. Zachillhu (1992) held it invalid for want of constitutionally required ratification. Decisions under paragraph 6 remain subject to judicial review on recognised grounds, including constitutional violations, mala fides, breach of natural justice and perversity. The Speaker's decision is therefore not absolutely immune from judicial scrutiny.
Paragraph 8: Procedural rules
The Speaker or Chairman may frame rules on party records, reporting of condonation or admission to parties, and inquiry procedures. Such rules are laid before the House for the constitutionally prescribed 30-day period and are subject to approval, modification or disapproval. Wilful breach may be treated in the manner provided for breach of privilege, subject to the constitutional safeguards.
Anti-defection law at a glance
| Situation | Legal position |
|---|---|
| Party member voluntarily gives up membership | May be disqualified under paragraph 2(1)(a) |
| Member defies party voting direction | Paragraph 2(1)(b); prior permission or condonation within 15 days matters |
| Independent member joins a party after election | Disqualification under paragraph 2(2) |
| Nominated member joins party after six months | Disqualification under paragraph 2(3) |
| Party split | Former paragraph 3 exemption omitted |
| Qualifying merger | Paragraph 4 exception, including two-thirds legislative-party requirement |
| Decision-maker | Speaker or Chairman, subject to judicial review |
Important Supreme Court decisions
Kihoto Hollohan v. Zachillhu (1992): Upheld the principal anti-defection framework, invalidated paragraph 7 and recognised judicial review of disqualification decisions.
Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023): Clarified the distinction between the political party and legislature party and the limits of relying on a factional split as a defence.
Official constitutional text and legal resources
- Ministry of Law and Justice - Constitution of India editions
- Tenth Schedule - official constitutional text (PDF)
- Supreme Court of India
- Judgments search portal
Frequently asked questions
Does resignation from a party always have to be in writing?
No. Depending on the evidence, a member's conduct may establish voluntarily giving up membership even without a written resignation.
Is a two-thirds split automatically protected?
No. The old split exception was deleted. The two-thirds threshold relates to the specific statutory merger defence and does not independently legalise a split.
Can a court review the Speaker's decision?
Yes. The Supreme Court has recognised judicial review on established constitutional grounds.
Original article: detailed provisions and explanatory text
1. Interpretation - In this Schedule, unless the context otherwise requires,- (a) "House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State; (b) "legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or 2 *** paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) "original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2; (d) "paragraph" means a paragraph of this Schedule.
2. Disqualification on ground of defection.- (1) Subject to the provisions of 3 [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House- (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Explanation.-For the purposes of this sub-paragraph,-
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall,-
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,- (i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. 3. Omitted in 2003
4. Disqualification on ground of defection not to apply in case of merger.- (1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party- (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. 5. Exemption
Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,- (a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or (b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office. 6. Decision on questions as to disqualification on ground of defection.- (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.
7. Bar of jurisdiction of courts
Not withstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. 8. Rules.- (1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for- (a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong;
(b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished;
(c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to in subparagraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. (2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect. (3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any willful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.