Tenth Schedule: The Anti-Defection Law (Overview)

Tenth Schedule overview starts with a simple identification: it is the part of the Constitution that lays down when a Member of Parliament or a state legislature loses their seat for defecting from their political party. Added by the Constitution (Fifty-second Amendment) Act, 1985, with effect from 1 March 1985, the Tenth Schedule is commonly called the anti-defection law and is linked to Articles 102(2) and 191(2), which deal with disqualification of members of Parliament and state legislatures respectively.

Why the Tenth Schedule Was Added

Before 1985, legislators could switch party allegiance without losing their seat, and large-scale floor-crossing for ministerial berths or other inducements had become a recurring feature of Indian legislatures. The Fifty-second Amendment inserted the Tenth Schedule specifically to disqualify members of Parliament and state legislatures on the ground of defection, in an attempt to bring stability to elected governments and discourage horse-trading.

Grounds for Disqualification

Under paragraph 2 of the Tenth Schedule, a member belonging to a political party is disqualified from continuing as a member of the House in two situations:

• If the member voluntarily gives up membership of the political party they belong to.
• If the member votes, or abstains from voting, in the House contrary to any direction issued by their party (or a person/authority authorised by the party), without obtaining prior permission, and the voting or abstention is not condoned by the party within fifteen days.

The Schedule also defines how membership of a party is determined for this purpose. An elected member is deemed to belong to the party that set them up as a candidate. An independently elected member who later joins a political party is disqualified. A nominated member is allowed a grace period; if they join a party only after six months of taking their seat, they too become liable to disqualification.

The Merger Exception

The Tenth Schedule does not treat every change of party affiliation as defection. Where an original political party merges with another, and at least two-thirds of the members of the legislature party agree to the merger, the members involved are not disqualified. This "merger" protection is the sole exception left in the Schedule; an earlier provision that protected a one-third "split" of a legislature party from disqualification was removed by a later amendment, discussed below.

Who Decides a Defection Question

Any question on whether a member has become subject to disqualification under the Tenth Schedule is decided by the Speaker (in the case of the Lok Sabha or a state Legislative Assembly) or the Chairman (in the case of the Rajya Sabha or a state Legislative Council), acting as the presiding officer of the House concerned. The Schedule does not prescribe any fixed time-frame within which the presiding officer must decide a defection case, a gap that has drawn criticism because delayed decisions can let a disqualified member continue to function, and even vote, for extended periods.

Judicial Review: Kihoto Hollohan v. Zachillhu

The constitutionality of the Tenth Schedule was tested in Kihoto Hollohan v. Zachillhu (1992). The Supreme Court struck down paragraph 7 of the Schedule, which had barred the jurisdiction of courts over the presiding officer's decisions. The Court held that paragraph 7 effectively curtailed the Supreme Court's jurisdiction under Article 136 and the High Courts' jurisdiction under Article 226, and such a change required ratification by at least half of the state legislatures under the proviso to Article 368(2); since that ratification had not taken place, paragraph 7 was declared unconstitutional and void. At the same time, the Court upheld the validity of the rest of the Tenth Schedule, including the disqualification grounds themselves. It further clarified that although the presiding officer's decision functions like a tribunal's order, it remains open to judicial review on limited grounds such as mala fide exercise of power, perversity, or violation of natural justice.

The 91st Amendment and Article 361B

The Constitution (Ninety-first Amendment) Act, 2003 tightened the anti-defection framework in two significant ways. First, it removed the one-third "split" protection from the Tenth Schedule, so that a faction breaking away from a legislature party can no longer escape disqualification merely by showing that one-third of the party's members left together; only the two-thirds merger route now survives. Second, it inserted Article 361B, which disqualifies a member found guilty of defection under paragraph 2 of the Tenth Schedule from also holding any remunerative political post for the period running from the date of disqualification until the normal expiry of their term, or until they are declared elected in a fresh election, whichever is earlier. A "remunerative political post" here covers an office under the Union or a state government where the salary is paid from public revenue, or an office under a government-owned body where the salary is paid by that body, except where the payment is purely compensatory.

Snapshot of Key Amendments

UPSC Relevance

Prelims

• The Tenth Schedule was inserted by which amendment, and from what date did it take effect.
• Grounds on which a member can be disqualified under paragraph 2 — voluntary giving up of membership and voting against the whip without condonation.
• The merger exception requires agreement of what proportion of the legislature party.
• Which authority decides a disqualification question, and what the Kihoto Hollohan case held about paragraph 7.

Mains

• Discuss the objectives behind the Fifty-second Amendment Act, 1985, and evaluate whether the Tenth Schedule has succeeded in curbing defection.
• Examine the significance of Kihoto Hollohan v. Zachillhu in defining the scope of judicial review over a presiding officer's decisions on defection.
• Critically analyse the role of the Speaker/Chairman as adjudicator under the Tenth Schedule, including the absence of a prescribed decision timeline.

FAQ

Q1. What is the Tenth Schedule of the Constitution? It is the schedule, added by the Fifty-second Amendment Act, 1985, that lays down the grounds and procedure for disqualifying members of Parliament and state legislatures who defect from their political party.

Q2. Who decides whether a legislator has defected? The Speaker or Chairman of the House concerned decides such questions, and their decision is subject to limited judicial review as clarified in Kihoto Hollohan v. Zachillhu (1992).

Q3. Does merging with another party always protect a legislator from disqualification? No. Protection applies only when the original party itself merges with another party and at least two-thirds of the legislature party's members agree to the merger.

Q4. What did the Kihoto Hollohan case decide? It struck down paragraph 7 of the Tenth Schedule, which barred court jurisdiction, for want of the ratification required under Article 368(2), while upholding the rest of the Schedule.

Q5. What does Article 361B provide? Inserted by the 91st Amendment, 2003, it bars a member disqualified for defection from holding any remunerative political post until their term would have expired or they are re-elected, whichever is earlier.

Quick Revision

• Tenth Schedule inserted by the 52nd Amendment Act, 1985; effective 1 March 1985.
• Linked to Articles 102(2) and 191(2).
• Disqualification grounds: voluntary giving up of party membership; voting/abstaining against party direction without condonation within 15 days.
• Nominated member: six-month grace period before joining a party is safe.
• Merger exception: two-thirds of legislature party must agree.
• One-third split protection removed by the 91st Amendment, 2003.
• Presiding officer (Speaker/Chairman) decides disqualification; no fixed time-frame prescribed.
• Kihoto Hollohan v. Zachillhu (1992): paragraph 7 struck down; rest of Schedule upheld; limited judicial review allowed.
• Article 361B (91st Amendment) bars disqualified defectors from remunerative political posts.

Sources

• Constitution of India, Tenth Schedule (Articles 102(2) and 191(2)) — legislative.gov.in
• Constitution of India, Article 361B — legislative.gov.in
• Constitution (Fifty-second Amendment) Act, 1985 — legislative.gov.in
• Constitution (Ninety-first Amendment) Act, 2003 — legislative.gov.in
• Kihoto Hollohan v. Zachillhu (1992) — Supreme Court of India, judgment records

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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