Tenth Schedule Loopholes: Defections Disguised as Mergers Undermine Anti-Defection Law
Contents4
The Hindu - Opinion · 21 Jun 2026 · 2 min read
Prelims · Polity Mains · GS2 Polity and constitution High relevance
Recent defections of Shiv Sena (UBT) and TMC MPs, framed as mergers under the Tenth Schedule's two-thirds rule, highlight systemic flaws in India's anti-defection law, eroding parliamentary ethics and constitutional intent.
Key points
Tenth Schedule allows defection without disqualification if two-thirds of a party's legislators merge with another party, a provision exploited in recent Shiv Sena (UBT) and TMC defections.
2003 Amendment removed the 'split' clause (allowing one-third defections) but retained the 'merger' exception, creating a legal loophole for engineered defections.
Supreme Court precedent in Kihoto Hollohan case clarified mergers must involve the parent political party, not just legislative wings, but presiding officers continue approving questionable mergers.
[GS2-Polity] This connects to GS2's 'Parliament and State Legislatures' syllabus by exposing how procedural loopholes undermine legislative accountability and party discipline.
Shiv Sena (UBT) case involves six of nine Lok Sabha MPs (exactly two-thirds) defecting to Eknath Shinde faction, testing the merger provision's constitutional validity.
TMC rebellion saw 20 of 28 Lok Sabha MPs align with BJP-led NDA, similarly exploiting the two-thirds rule while awaiting Speaker's decision on disqualification.
[GS3-Governance] The defection wave reflects institutional failure in enforcing ethical governance, with ruling parties benefiting from opposition fragmentation.
NDA strength increases through such defections, though still short of the two-thirds majority required for constitutional amendments, bypassing consensus-building intent.
Way Forward: Amend the Tenth Schedule to require EC-recognized party mergers, impose cooling-off periods for defectors, and mandate time-bound judicial resolution of disqualification cases.
Key terms
- Tenth Schedule
- Constitutional provision added by the 52nd Amendment (1985) to prevent defections, allowing disqualification of legislators who voluntarily resign or violate party whips. Its merger exception (Paragraph 4) requires two-thirds of a party's legislators to join another party, intended for genuine party mergers but now exploited for engineered defections.
- Anti-Defection Law
- Legal framework under Tenth Schedule to maintain party discipline, amended in 2003 (91st Amendment) to remove the split provision. UPSC relevance lies in its impact on parliamentary democracy, stability of governments, and judicial interpretations like Kihoto Hollohan case.
- Kihoto Hollohan Judgment
- 1992 Supreme Court ruling that upheld Tenth Schedule's validity while asserting judicial review over Speaker's decisions. It clarified mergers must involve original political parties, not just legislative wings, forming a key precedent for current defection cases.
- Two-Thirds Majority
- Constitutional threshold for major decisions like amendments (Article 368) or state reorganization. Its exploitation in defections subverts the high consensus requirement, making it a critical concept for GS2's 'Indian Constitution' and 'Parliament' topics.
Practice question
Critically analyze the loopholes in the Tenth Schedule of the Indian Constitution that allow defections to be disguised as mergers, undermining the original intent of the anti-defection law. (250 words, 15 marks)
GS2 15 marks 250 words Mains
Key terms to include: Tenth Schedule Anti-Defection Law Kihoto Hollohan Judgment Two-Thirds Majority 2003 Amendment Parliamentary Democracy Judicial Review Speaker's Discretion
Answer framework
Introduction
Briefly introduce the Tenth Schedule and its purpose to curb defections. Mention how recent cases like Shiv Sena (UBT) and TMC defections exploit the merger provision.
Legal Loopholes in the Tenth Schedule
The two-thirds merger exception (Paragraph 4) allows defections without disqualification if two-thirds of a party's legislators join another party.
2003 Amendment removed the 'split' clause but retained the 'merger' exception, creating a legal vacuum for engineered defections.
Supreme Court's Kihoto Hollohan judgment clarified mergers must involve the parent political party, but presiding officers often ignore this.
Impact on Parliamentary Democracy
Undermines party discipline and stability of governments, contrary to the original intent of the anti-defection law.
Encourages opportunistic politics, where legislators defect for personal or political gains, eroding public trust.
Leads to fragmentation of opposition, giving undue advantage to ruling parties.
Judicial and Institutional Failures
Delays in disqualification decisions by Speakers, often influenced by political considerations.
Lack of stringent enforcement of Supreme Court precedents like Kihoto Hollohan.
Need for time-bound judicial resolution of disqualification cases.
Conclusion
Suggest reforms like amending the Tenth Schedule to require EC-recognized party mergers, imposing cooling-off periods for defectors, and ensuring time-bound judicial resolution to restore the law's original intent.
Fact check
All facts verified