At a glance
PaperPaper ISubjectPolitySyllabusThe country's political system and Constitution of India, social systems and public administration, and regional and international security issues and human rights including its indicatorsImportanceHigh
Tenth ScheduleAnti Defection52nd Amendment91st AmendmentKihoto HollohanSpeakerDisqualificationDefection
The anti-defection law is a compact, high-yield topic: a single Schedule, two amendments, a clear list of grounds, a short list of exceptions, and one landmark case. CAPF examiners ask which amendment added the law (52nd, 1985), which Schedule contains it (Tenth), who decides a defection dispute (the Speaker or Chairman), and what the 91st Amendment (2003) changed. It also touches the human-rights and democracy limb through the tension between party discipline and a legislator's freedom of conscience, which the Court has weighed against the stability of government. This note gives the grounds-and-exceptions table, the procedure, and the case line. The standard references are the text of the Tenth Schedule itself and Laxmikanth's chapter on the anti-defection law.
Before 1985, frequent floor-crossing destabilised governments. The phrase "Aaya Ram, Gaya Ram" (from a 1967 Haryana episode where a legislator changed parties three times in a fortnight) became shorthand for this. To curb defection and give stability to elected governments, the 52nd Constitutional Amendment Act, 1985 added the Tenth Schedule and amended Articles 101, 102, 190 and 191. The law applies to members of Parliament and to members of State legislatures.
A member is disqualified on the following grounds. CAPF tests who falls within each.
| Member |
Disqualified if |
| A member belonging to a political party |
He voluntarily gives up membership of his party, or votes (or abstains) contrary to the party's direction (a whip) without prior permission, and the act is not condoned by the party within 15 days |
| An independent member |
He joins any political party after the election |
| A nominated member |
He joins any political party after the expiry of six months from the date he takes his seat (he may join one within the first six months without penalty) |
"Voluntarily giving up membership" has been read by the courts to be wider than formal resignation; conduct (such as publicly opposing the party or attending a rival party's events) can amount to it.
| Exception |
Position now |
| Merger |
A member is not disqualified if his party merges with another and at least two-thirds of its legislators agree to the merger. Such members, and those who stay with the original party, are protected |
| Split (one-third) |
The original Tenth Schedule protected a "split" of one-third of a party's legislators. The 91st Amendment, 2003 deleted this split exception entirely. Only the two-thirds merger now survives |
| Presiding officer |
A person elected Speaker, Deputy Speaker, Chairman or Deputy Chairman may give up party membership on election and rejoin it on demitting office, without disqualification |
The 91st Amendment tightened the law in three ways CAPF tests together.
- Deleted the one-third "split" exception from the Tenth Schedule, so that only a genuine two-thirds merger now escapes disqualification.
- Provided that a member disqualified on the ground of defection cannot hold any remunerative political post (such as a minister) until he is re-elected or his term ends.
- Capped the Council of Ministers at the Union and in the States at 15 per cent of the strength of the House (with a minimum of 12 ministers in a State), to reduce the lure of office that fuelled defections.
| Question |
Answer |
| Who decides a defection dispute |
The presiding officer: the Speaker (Lok Sabha or Assembly) or the Chairman (Rajya Sabha or Council). The decision is treated as final |
| Is the decision subject to court review |
Yes. Kihoto Hollohan v Zachillhu (1992) upheld the Tenth Schedule but held that the presiding officer acts as a tribunal, so the decision is open to judicial review on grounds such as mala fides, perversity, or violation of natural justice |
| What did Kihoto Hollohan strike down |
It struck down the original Para 7 of the Tenth Schedule, which had barred courts entirely, for want of State ratification (a federal-provision change to the courts' jurisdiction needed ratification under Art 368) |
| Time limit on the Speaker |
The Constitution fixes none. In later rulings the Court urged Speakers to decide within a reasonable period (suggested as around three months), and observed that an inordinate delay defeats the law |
- The Tenth Schedule balances two democratic values: the stability of an elected government and the freedom of conscience of an individual legislator. Critics argue it subordinates the representative to the party whip, weakening accountability to constituents; defenders argue it protects the popular mandate from being undone by bribery and horse-trading.
- The role of the Speaker, who is normally drawn from the ruling party, raises a neutrality concern. Several commissions (including the Dinesh Goswami Committee and the National Commission to Review the Working of the Constitution) recommended that the decision be vested in the President or Governor acting on the advice of the Election Commission, or in an independent tribunal, to remove the partisanship. Verify the latest position, as no such transfer has yet been enacted.
- Single-correct: which amendment added the anti-defection law (52nd, 1985); which Schedule contains it (Tenth).
- Matching: amendment to effect (52nd added the Schedule, 91st deleted the split and capped the Council of Ministers).
- How-many-statements-correct: a cluster on grounds and exceptions (whip, merger two-thirds, nominated-member six months).
- Assertion-reason: a defecting legislator can be disqualified because party discipline protects an elected government.
Authored practice, not a verbatim PYQ.
Q1The anti-defection law is contained in which Schedule of the Constitution.
- ANinth
- BTenth
- CEleventh
- DTwelfth. Answer
- B. The Tenth Schedule was added by the 52nd Amendment, 1985.
Q2Consider the following about the Tenth Schedule. (1) A merger needs the agreement of at least two-thirds of a party's legislators. (2) The "split" exception of one-third was deleted by the 91st Amendment. (3) The Speaker's decision is final and beyond judicial review. How many are correct.
- Aone
- Btwo
- Cthree
- Dnone. Answer
- B. Statements 1 and 2 are correct; statement 3 is wrong because Kihoto Hollohan (1992) made the decision reviewable.
Q3The 91st Amendment, 2003 did which of the following.
- Aadded the Tenth Schedule
- Bdeleted the split exception and capped the Council of Ministers at 15 per cent
- Creduced the voting age
- Dcreated the GST Council. Answer
- B.
Q4Who decides whether a member has incurred disqualification under the Tenth Schedule.
- Athe Election Commission
- Bthe President
- Cthe Speaker or Chairman of the House
- Dthe Supreme Court. Answer
- C. The presiding officer decides, acting as a tribunal.
Q5A nominated member of a House is disqualified for defection if he joins a political party.
- Aat any time after taking his seat
- Bonly after six months from taking his seat
- Conly in the last year of his term
- Dhe can never be disqualified. Answer
- B. A nominated member may join a party within six months without penalty.
| Often mixed up |
The correct position |
| Split vs merger |
The split (one-third) exception was deleted by the 91st Amendment; only the two-thirds merger survives |
| 52nd vs 91st Amendment |
The 52nd added the Schedule in 1985; the 91st tightened it in 2003 |
| Who decides defection |
The presiding officer of the House, not the Election Commission or the courts in the first instance |
| Is the decision final |
The Schedule says final, but Kihoto Hollohan made it open to judicial review |
| Nominated member rule |
A nominated member has a six-month grace period to join a party |
- "52 brought it, 91 toughened it." The 52nd Amendment created the Tenth Schedule; the 91st deleted the split and capped ministers.
- "Two-thirds merge, one-third gone." A two-thirds merger is safe; the one-third split is no longer an exception.
- Decider: "Speaker sits as a tribunal," so the decision is reviewable.
- 52nd Amendment, 1985 added the Tenth Schedule (the anti-defection law), amending Art 101, 102, 190, 191.
- Grounds: voluntarily giving up party membership; defying the whip; an independent joining a party; a nominated member joining a party after six months.
- Exception: a two-thirds merger (the one-third split was deleted by the 91st Amendment, 2003).
- 91st Amendment, 2003 also barred a defector from a remunerative political post and capped the Council of Ministers at 15 per cent of the House.
- The Speaker or Chairman decides, acting as a tribunal; Kihoto Hollohan v Zachillhu (1992) upheld the law and allowed judicial review.
- The anti-defection law is in the Tenth Schedule.
- It was added by the 52nd Amendment, 1985.
- A member is disqualified for voluntarily giving up party membership or defying the whip.
- An independent who joins a party is disqualified.
- A nominated member is disqualified if he joins a party after six months.
- The exception is a two-thirds merger.
- The 91st Amendment, 2003 deleted the one-third split exception.
- The 91st Amendment capped the Council of Ministers at 15 per cent of the House.
- The presiding officer decides a defection dispute.
- Kihoto Hollohan (1992) upheld the law and allowed judicial review.
- The decision is reviewable on mala fides, perversity, or breach of natural justice.
- Tenth Schedule: the part of the Constitution containing the anti-defection law.
- Defection: leaving one's party or defying its direction in a manner caught by the Schedule.
- Whip: a party's written direction to its legislators on how to vote.
- Merger: the joining of one party with another, an exception if two-thirds of legislators agree.
- Split: a breakaway of one-third of a party's legislators, formerly an exception, deleted in 2003.
- Presiding officer: the Speaker or Chairman who decides a defection dispute.
- Tribunal: a quasi-judicial decision-maker whose orders are open to judicial review.