The Anti-Defection Law and the Tenth Schedule

The anti-defection law is the Tenth Schedule to the Constitution of India. It disqualifies a member of Parliament or a State Legislature who voluntarily gives up membership of the party that set them up, or who votes or abstains against the party's direction without permission and is not condoned within fifteen days. The Speaker or Chairman decides the question, and that decision is open to judicial review on limited grounds, as the Supreme Court held in Kihoto Hollohan v. Zachillhu (1992).

This explainer is for B.A. LL.B. and LL.B. students preparing Constitutional Law papers, and for citizens who want to follow a defection dispute in the news without getting lost. Defection cases decide who governs a State, so the rules are worth knowing exactly.

Where does the law come from?

The Tenth Schedule was added by the Constitution (Fifty-second Amendment) Act, 1985. It has eight paragraphs. The ones you must know by number are these:

• Paragraph 1: definitions, including "legislature party" and "original political party".
• Paragraph 2: the grounds of disqualification.
• Paragraph 3: the old "split" exception (one third of a legislature party). It was omitted by the Constitution (Ninety-first Amendment) Act, 2003, with effect from 1 January 2004.
• Paragraph 4: the merger exception.
• Paragraph 5: protection for presiding officers.
• Paragraph 6: the Speaker or Chairman decides, and the decision is "final".
• Paragraph 7: the bar on courts (struck down, see below).
• Paragraph 8: power of the Speaker or Chairman to make rules.

Under paragraph 8, each House has its own rules. In Tamil Nadu these are the Members of the Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986. They govern how a petition is filed and inquired into. Check the current text with the Assembly Secretariat before relying on a specific rule number.

When is a member disqualified?

1. Voluntarily giving up party membership (paragraph 2(1)(a)). No formal resignation is needed. Conduct can show it.
2. Defying the party direction in a vote (paragraph 2(1)(b)), unless the member had prior permission or the party condones it within fifteen days.
3. An independent joining a party after election (paragraph 2(2)).
4. A nominated member joining a party more than six months after taking the seat (paragraph 2(3)).

An elected member is treated as belonging to the party that set them up as a candidate. That is the anchor for every question.

What are the exceptions?

Since 2004 there is only one route out for a group: merger under paragraph 4. The original political party must merge with another party, and the merger is deemed to have taken place only if at least two thirds of the members of the legislature party have agreed to it. Paragraph 5 separately protects a Speaker, Deputy Speaker, Chairman or Deputy Chairman who gives up party membership on election to that office.

Students often write that a one third "split" still saves members. It does not. That defence went with paragraph 3 in 2003.

How have the courts read it?

Kihoto Hollohan v. Zachillhu (1992)

A five judge Constitution Bench upheld the Tenth Schedule by majority (Venkatachaliah, Reddy and Agrawal JJ., with Sharma and Verma JJ. dissenting). The majority held:

• Paragraph 7 changed the operation of Articles 136, 226 and 227, so it needed ratification by State Legislatures under the proviso to Article 368(2). It was not ratified, so it is invalid, but it is severable and the rest of the Schedule stands.
• When deciding under the Schedule, the Speaker acts as a tribunal. The "finality" in paragraph 6 does not exclude judicial review for violation of constitutional mandates, mala fides, non-compliance with natural justice and perversity.
• Courts will not intervene before the Speaker decides, except where an interim step would have grave, immediate and irreversible consequences.

Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020)

A three judge bench (Nariman, Bose and Ramasubramanian JJ.) held that a Speaker should decide disqualification petitions within three months of filing, absent exceptional circumstances. It asked Parliament to seriously consider replacing the Speaker with a permanent independent tribunal. Parliament has not made that change.

Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)

Decided by a Constitution Bench led by Chief Justice D.Y. Chandrachud on 11 May 2023 in the Shiv Sena dispute. The Court held that the whip and the leader in the House are appointed by the political party, not the legislature party, so a majority of MLAs cannot simply declare themselves the party. The Speaker remains the proper authority to decide disqualification and must do so within a reasonable time. The Court referred to a larger bench the question, arising from Nabam Rebia, whether a pending notice to remove the Speaker stops the Speaker from deciding these petitions.

Padi Kaushik Reddy v. State of Telangana (2025)

On 31 July 2025 a bench of Chief Justice B.R. Gavai and Justice A.G. Masih directed the Telangana Speaker to decide petitions against ten MLAs within three months, and observed that whether the Speaker based mechanism works is for Parliament to examine.

The Madras High Court and the 18 AIADMK MLAs (2018)

In September 2017 the Tamil Nadu Speaker disqualified 18 MLAs who had given the Governor letters withdrawing support from the Chief Minister, treating this as voluntarily giving up membership. On 14 June 2018 a Division Bench split: Chief Justice Indira Banerjee upheld the order, Justice M. Sundar set it aside. On 25 October 2018 the third judge, Justice M. Sathyanarayanan, agreed with the Chief Justice and the disqualification stood. This is the best local illustration of "implied" giving up of membership under paragraph 2(1)(a).

What is the current position in 2026?

The text of the Schedule has not changed since 2004. The working rules are: the party, not the legislators, controls the whip; merger needs two thirds; the Speaker decides first; courts review on Kihoto grounds and can set time limits. Defection is not a criminal offence, so the BNS, BNSS and BSA play no part. Tamil Nadu saw the issue again in May 2026. Before the trust vote of 13 May 2026, the AIADMK directed its MLAs to vote against the TVK government, and party leaders said any MLA who broke the whip would face action under the Tenth Schedule. At least 24 AIADMK MLAs then voted for Chief Minister C. Joseph Vijay, according to press reports. Any petition arising from that vote goes first to Speaker JCD Prabhakar under paragraph 6. Follow official Assembly notices for the outcome rather than news commentary.

How should you write about it in an exam?

1. Open with the source: the Constitution (Fifty-second Amendment) Act, 1985, and the purpose of curbing defections that topple governments.
2. State the grounds by paragraph number, then the merger exception and the deletion of paragraph 3.
3. Explain Kihoto Hollohan in three lines: paragraph 7 invalid, Speaker as tribunal, limited review.
4. Add Keisham (three months), Subhash Desai (party appoints the whip) and the Madras High Court 2018 case as the Tamil Nadu example.
5. End with a critique: the Speaker's partisanship, delay, and the tribunal proposal.

A student in Nagercoil who writes "paragraph 2(1)(a), implied relinquishment, upheld by the Madras High Court in 2018" will score better than one who writes a page of general politics. If you want to see how such disputes are argued, the programmes page lists the courses where this is taught.

Sources

• Constitution of India: Tenth Schedule: full text with amendment notes, including omission of paragraph 3.
• Kihoto Hollohan v. Zachillhu, Supreme Court judgment: the 1992 Constitution Bench decision.
• Subhash Desai v. Principal Secretary, Governor of Maharashtra: Supreme Court judgment of 11 May 2023.
• LiveLaw report on Subhash Desai: the political party, not the legislature party, appoints the whip and leader (May 2023).
• The Week on the Tamil Nadu trust vote: 24 AIADMK MLAs vote for the government (13 May 2026).
• LiveLaw report on Keisham Meghachandra Singh: the three month rule (January 2020).
• LiveLaw report on the Madras High Court decision: disqualification of 18 AIADMK MLAs upheld (October 2018).
• SCC Times on Padi Kaushik Reddy: Telangana Speaker directed to decide within three months (2025).