The two-third gambit and the evolution of the tenth schedule

Abstract

Every vote cast in a democracy carries the silent hope of voters that the person elected shares their ideas and vision for the nation and will honour the mandate of the people who chose them. The introduction of the Tenth Schedule into India’s constitutional structure by Parliament was a positive step directed at bringing India out of “Aaya Ram, Gaya Ram” politics. However, nearly four decades later, that promise is being broken through the exploitation of legal loopholes that weaken this law. In the current political environment of India — from the collapse of Shiv Sena and NCP in Maharashtra, to AAP MPs crossing over to the BJP overnight, to the brewing rebellion in TMC — legislators have significantly learned to exploit the weaknesses in this law. This article focuses on the major problems and loopholes carried by the Tenth Schedule, along with the legal evolution of the law over the past four decades through several landmark cases, and suggests areas for improvement.

Introduction

India’s anti-defection law is enshrined in the Tenth Schedule of the Constitution, introduced by the 52nd Constitutional Amendment Act, 1985. It was introduced as a corrective to the chaos of the “Aaya Ram, Gaya Ram” era in Indian politics.[1] The phrase originated from the conduct of Gaya Lal, an MLA from Haryana who switched parties multiple times in a single day in 1967. For nearly four decades, the Tenth Schedule has served as a significant tool against political horse-trading. Yet it also carries a loophole that has been exploited in various political tussles in recent times — from the Shiv Sena and NCP splits in Maharashtra, to Raghav Chadha and AAP MPs joining the BJP in 2026, and now the current crisis in the Trinamool Congress following the West Bengal elections. These events raise a serious question: is the law still fit for the very purpose it was made for, or has it become an instrument that enables the very defections it was designed to prevent?

Legal Framework: The Skeleton of the Tenth Schedule

The Tenth Schedule provides for the disqualification of a legislator on two principal grounds: first, if the member voluntarily gives up membership of the party on whose ticket they were elected; and second, if a member votes or abstains contrary to the directions of their party whip in the House.[2] The law originally provided two exceptions to disqualification: a valid split (requiring one-third of members) and a valid merger (requiring two-thirds of members). The 91st Constitutional Amendment Act, 2003, however, deleted the split exception, leaving only the merger defence valid, which requires the support of at least two-thirds of the legislature party to secure protection from disqualification.[3]

The Speaker or Chairman of the House holds the adjudicatory power under the Tenth Schedule, which initially made the Speaker’s decision final but is now subject to judicial review under Articles 226 and 32 of the Constitution. The Supreme Court, in the landmark case of Kihoto Hollohan v Zachillhu (1992), upheld the constitutional validity of the Tenth Schedule[4] while striking down the provision that made the Speaker’s decision on disqualification completely final, ruling instead that it is subject to judicial review. The Court can review the Speaker’s final decision where there is mala fide (bad faith), procedural illegality, or a constitutional violation.

Legal Analysis: The Loopholes in the Law

The Speaker Problem
The most structurally dangerous loophole in the anti-defection law is the role of the Speaker in the entire process. The Speaker holds decision-making power in disqualification petitions, yet is also elected with the support of the party in majority in that House, creating a major conflict of interest. The Speaker is more likely to decide in favour of the ruling coalition that elected them. This was evident in the 2022 Shiv Sena split, in which Speaker Rahul Narwekar — appointed after the Shinde faction came to power — took nearly eighteen months to decide 34 petitions involving 54 MLAs, ultimately ruling in January 2024 that the Shinde faction was the “real Shiv Sena” and awarding it the original party symbol of bow and arrow. The Uddhav Thackeray faction challenged this before the Supreme Court, arguing that the Speaker’s ruling — based substantially on which faction held legislative majority — sat uneasily alongside the Supreme Court’s own 2023 judgment in Subhash Desai v Principal Secretary, Governor of Maharashtra,[5] which held that a “legislature party” has no independent existence from the “political party.” The Supreme Court raised this apparent tension during hearings in March 2024.

The judgment in the landmark case of Nabam Rebia v Deputy Speaker (2016)[6] further complicated this problem. A five-judge Constitution Bench held that a Speaker cannot decide disqualification proceedings while a notice for their own removal is pending before the House. This ruling created a further loophole, giving rebel legislators an escape route by freezing proceedings against themselves. The Shinde faction also relied on this loophole in June 2022. This ruling has since been referred for reconsideration to a seven-judge Constitution Bench in 2023, a reference that remains pending.

The Merger Exception
The merger exception under the Tenth Schedule was intended to provide legislators a measure of autonomy in cases of genuine ideological or political shift. In contemporary politics, however, this exception has itself become a loophole.[7] The law requires at least two-thirds of the legislature party’s members to support a merger; it does not require the merger of the entire political party itself. A group of legislators can therefore effect a merger in the House without any corresponding organisational merger of the political party as a whole — effectively allowing a faction to cross the floor without facing disqualification.

This occurred in the case of the Aam Aadmi Party, where Raghav Chadha, along with six other AAP Rajya Sabha MPs, announced a merger with the BJP in April 2026 — seven of AAP’s ten Rajya Sabha MPs in total, comfortably exceeding the two-thirds requirement.[8] Rajya Sabha Chairman C.P. Radhakrishnan accepted this as a valid merger under the provisions of the law. AAP’s senior leadership immediately filed disqualification petitions, arguing that no merger of the Aam Aadmi Party as a political organisation with the BJP had taken place, and that only the legislative bloc in the Rajya Sabha had switched sides. The Chairman’s acceptance of this merger remains constitutionally questionable in light of the Constitution Bench’s ruling in Subhash Desai, which held that the “legislature party” cannot be treated as autonomous from the “political party.”

The Maharashtra Political Crisis

The 2022–2023 political crisis involving Shiv Sena and NCP emerged as a template for systematic avoidance of the anti-defection law. Both parties followed an almost identical script: a numerically sufficient rebel faction withdrew support from the government, relied on Nabam Rebia to stall disqualification proceedings, and then approached the Election Commission of India (ECI) for recognition as the “real party.” Eknath Shinde executed this against the Uddhav Thackeray government in June 2022, subsequently securing recognition as the real Shiv Sena, along with both the name and the “bow and arrow” symbol, from the ECI in February 2023.[9] The NCP followed a similar path, with Ajit Pawar breaking away, joining the ruling alliance as Deputy Chief Minister of Maharashtra, and securing the name and symbol of the original NCP.

The Supreme Court, in both cases, imposed external deadlines for resolution, directing that the Shiv Sena proceedings be concluded by 31 December 2023 and the NCP proceedings by 31 January 2024.[10] Even after the Speaker delivered his decision, the matter continued to face legal scrutiny: during hearings in March 2024, the Supreme Court questioned whether the Speaker’s declaration of the “real Shiv Sena” had been based on legislative majority — an approach that sat uneasily with its own May 2023 judgment in Subhash Desai, which had directed that the Speaker not decide the question on the basis of numerical majority in the Assembly.

Evolution of the Tenth Schedule Through Landmark Legal Decisions

The Tenth Schedule, originally introduced by the 52nd Constitutional Amendment Act in 1985, has evolved over the past four decades, built substantially upon five landmark cases:

1. Kihoto Hollohan v Zachillhu (1992)
In this landmark case, a five-judge Constitution Bench of the Supreme Court of India upheld the constitutional validity of the Tenth Schedule, ruling that its provisions do not violate the freedom of speech. However, the Court took notice of the extensive powers conferred on the Speaker or Chairman of the House to decide disqualification, and held that while the Speaker acts as the deciding authority, their decisions remain subject to judicial review, with courts retaining jurisdiction to intervene under Articles 136, 226, and 227 of the Constitution.

2. Ravi S. Naik v Union of India (1994)
In this case, a three-judge Bench clarified the meaning of “voluntarily giving up membership” under the Tenth Schedule. The case arose from the disqualification of certain MLAs from the Goa Legislative Assembly for anti-party conduct. The Court held that a legislator need not formally resign from the party to be disqualified; disqualification can also follow from conduct that clearly demonstrates an intention to leave or oppose the party.[11] Conduct and behaviour can therefore constitute sufficient evidence of defection. The judgment significantly broadened the scope of the anti-defection law, and this principle has direct relevance to the AAP Rajya Sabha episode, where no formal resignation from AAP was tendered before the merger was declared.

3. Nabam Rebia & Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016)
This landmark case arose from the political crisis in Arunachal Pradesh. A five-judge Constitution Bench of the Supreme Court held that where a notice for the removal of the Speaker is pending before the House, the Speaker cannot decide disqualification petitions under the Tenth Schedule until the removal motion is resolved.[12] The judgment also significantly limited the Governor’s discretionary powers and sought to ensure fairness in anti-defection proceedings. However, in Subhash Desai (2023), the Constitution Bench referred this ruling to a seven-judge Bench for reconsideration. The principal criticism of Nabam Rebia is that it allows potential defectors to delay disqualification proceedings simply by initiating a removal motion against the Speaker.

4. Subhash Desai v Principal Secretary, Governor of Maharashtra (2023)
This landmark constitutional and anti-defection case arose from the political crisis in Maharashtra following the split within Shiv Sena. A five-judge Constitution Bench led by CJI D.Y. Chandrachud examined the powers of the Governor and the Speaker, and the operation of the Tenth Schedule. The Court held that the Governor cannot call for a floor test on the basis of internal disputes within a party alone, and that the Governor had acted improperly in inviting the Shinde faction to form the government without first allowing disqualification proceedings to conclude. The Court also clarified that a “legislature party” has no independent existence from the “political party” under the Tenth Schedule, and that the political party is the relevant authority in determining the party whip and leadership. However, because CM Uddhav Thackeray had voluntarily resigned before facing a floor test, the Court declined to restore his government. The judgment also questioned the ruling in Nabam Rebia and referred it to a seven-judge Constitution Bench for reconsideration, on the basis that its rule could weaken the anti-defection law.[13]

5. Padi Kaushik Reddy v State of Telangana (2025)
In this landmark anti-defection case, a bench of CJI B.R. Gavai and Justice Augustine George Masih dealt with the Speaker’s delay in deciding disqualification petitions. The case arose after several MLAs of the Bharat Rashtra Samithi (BRS) allegedly joined the ruling Congress party government in Telangana, and the Speaker failed to act on the resulting disqualification petitions for an extended period. The Court held that such delays defeat the purpose of the anti-defection law and directed the Speaker to decide the petitions within three months.[14] The Court went further, urging Parliament to reconsider the Speaker-centric adjudicatory mechanism and to explore the creation of an independent body to decide defection disputes fairly and promptly.

Conclusion: A Law in Need of Reformation

The Tenth Schedule was born out of a severe democratic crisis in India. Four decades later, it is itself in crisis. In Kihoto Hollohan, the Court had hoped that the law would serve as a constitutional guardian protecting the people’s mandate and punishing legislators who treat that mandate as a commodity — something clearly unacceptable in a democracy. That hope has been systematically defeated in recent times by the slow accumulation of structural abuses: the weaponisation of the Speaker’s powers, the manufactured merger, and horse-trading in the contemporary political environment, all aimed at gaining power through numbers rather than by respecting the actual mandate of citizens.

What the Maharashtra model, the AAP crisis, and the rebellion within TMC collectively demonstrate is that the Tenth Schedule, as it currently stands, rewards speed and proximity to the central government over legality. The defecting faction secures the floor test, approaches the Election Commission, engineers the two-thirds count, and prevails — because by the time the law catches up, the political reality has already been fixed.

The Supreme Court in Padi Kaushik Reddy reminded Parliament that the Tenth Schedule was introduced to protect the people’s mandate in a democracy, not the arithmetic of political parties. That reminder has gone largely unheeded in the current political environment. A voter who elects a candidate on a Congress ticket, an AAP ticket, or a Shiv Sena ticket does not consent to seeing that mandate transferred overnight for reasons of political or personal interest. Such legislators not only compromise their own ideologies and convictions overnight, but also erode public trust in electoral democracy itself. Until the Speaker is replaced as adjudicator by a genuinely independent authority, the merger exception is clearly reformed and defined, and disqualification proceedings are bound by enforceable time limits, the Tenth Schedule will continue to fail in its core objective of protecting electoral democracy in this nation.

References

[1] The phrase originated from the conduct of Gaya Lal, an MLA of Haryana, who switched parties three times in a single day in 1967. See Paras Diwan, “Aya Ram Gaya Ram: The Politics of Defection,” Journal of the Indian Law Institute, Vol. 21, No. 3 (1979), pp. 291–312.
[2] Constitution of India, 1950, Tenth Schedule, Paragraph 2(1)(a) and 2(1)(b), inserted by the Constitution (Fifty-Second Amendment) Act, 1985.
[3] Constitution (Ninety-First Amendment) Act, 2003, amending Articles 75(1A) and 164(1A), and deleting Paragraph 3 of the Tenth Schedule. See Ministry of Law and Justice, Gazette of India, 1 January 2004.
[4] Kihoto Hollohan v Zachillhu and Others, AIR 1993 SC 412; 1992 Supp (2) SCC 651; 1992 SCR (1) 686. Decided 18 February 1992 by a five-judge Constitution Bench comprising M.N. Venkatachalliah, L.M. Sharma, J.S. Verma, K. Jayachandra Reddy, and S.C. Agrawal, JJ.
[5] Subhash Desai v Principal Secretary, Governor of Maharashtra & Ors, 2023 SCC OnLine SC 607; AIR 2023 SC 2406; Writ Petition (C) No. 493 of 2022. Decided 11 May 2023 by a five-judge Constitution Bench: CJI D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha, JJ.
[6] Nabam Rebia & Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly & Others, (2016) 8 SCC 1; AIR 2016 SC 3209; Civil Appeal Nos. 6203–6204 of 2016. Decided 13 July 2016 by a five-judge Constitution Bench: J.S. Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose, and N.V. Ramana, JJ.
[7] Constitution of India, 1950, Tenth Schedule, Paragraph 4, inserted by the Constitution (Fifty-Second Amendment) Act, 1985.
[8] “Raghav Chadha Splits AAP, to Join BJP With Six Other Rajya Sabha MPs,” various news reports, 24 April 2026. AAP’s Rajya Sabha strength fell from ten to three.
[9] Election Commission of India, In the matter of dispute regarding the faction of Shiv Sena, Order dated 17 February 2023. The ECI awarded the “Shiv Sena” name and “bow and arrow” symbol to the Shinde faction.
[10] Subhash Desai v Principal Secretary, Governor of Maharashtra & Ors (Supreme Court, 30 October 2023): a bench comprising CJI D.Y. Chandrachud, J.B. Pardiwala, and Manoj Misra, JJ., directed the Maharashtra Assembly Speaker to conclude Shiv Sena disqualification proceedings by 31 December 2023, and NCP proceedings by 31 January 2024.
[11] Ravi S. Naik and Sanjay Bandekar v Union of India and Others, AIR 1994 SC 1558, decided 9 February 1994.
[12] Nabam Rebia, (2016) 8 SCC 1, at paras 161–163: “If a notice has been given for removal of the Speaker, and the same is pending, the Speaker cannot exercise any of the powers conferred on him under Paragraph 6(1) of the Tenth Schedule.”
[13] Subhash Desai, 2023 SCC OnLine SC 607, at para 105: “The legislature party has no independent existence from the political party. The independent existence of the legislature party is recognised only to the limited extent of presenting a defence of the merger.”
[14] Padi Kaushik Reddy Etc v The State of Telangana and Others Etc, Neutral Citation: 2025 INSC 912; Civil Appeal Nos. arising out of SLP(C) Nos. 2353–2354 of 2025 (and connected cases). Decided 31 July 2025 by a bench of CJI B.R. Gavai and Justice Augustine George Masih.