Raghav Chadha and two-thirds of AAP's Rajya Sabha members (legislature party) have merged with the BJP, citing the Tenth Schedule's merger exception (4th paragraph) and a Bombay High Court precedent. In 2019, 10 of 15 Goa Congress MLAs merged with the BJP. The Speaker rejected a subsequent disqualification petition, a decision upheld by the Bombay High Court in 2022. The Bombay High Court affirmed that a two-thirds majority of the legislature party is sufficient for a valid merger under the Tenth Schedule. The Supreme Court declined an urgent hearing on the initial challenge of the Bombay High Court decision, as the 2022 assembly term had ended. However, after eight of 11 Congress MLAs joined the BJP in September 2022, a similar challenge arose. In January 2025, the Bombay High Court's Goa Bench upheld the Speaker's refusal to disqualify them, citing its own 2022 precedent. This decision is currently pending before the Supreme Court (SLP(C) 5256/25).
However, the Supreme Court's ruling in Subhash Desai (2023) suggests that a legislature party[1] merger without the original political party's[2] consent may not be a valid defense. The ultimate determination of legality now rests with the Supreme Court, where the pending Goa MLAs' case (SLP(C) 5256/25) is expected to establish a definitive precedent for mergers of a similar nature.
Constitutional role of the Speaker:
The Speaker (or Chairman) occupies a pivotal position within the framework of parliamentary democracy, serving as the guardian of the rights and privileges of the House. The Speaker performs a wide range of responsibilities, including essential functions of a judicial character. The provisions of Articles 93[3] through 95[4] of the Constitution outline the powers and duties of the Speaker. These functions are executed in accordance with constitutional mandates and the Rules of Procedure and Conduct of Business in the Lok Sabha[5]. As the final interpreter of these rules and constitutional provisions within the House, the Speaker's decisions on all parliamentary matters are definitive and final.
Immunity under Articles 122(2) and 212(2):
The Constitution does not grant the Judiciary the authority to inquire into legislative proceedings. In the discharge of their official powers and functions, the Speaker is not amenable to any outside authority and remains answerable solely to the House[6]. Under these provisions, judicial authority is limited, granting comprehensive immunity to the proceedings of Parliament and State Legislatures. Since these immunities are constitutionally conferred under Articles 122 and 212, and as the Speaker serves as the representative of the House, such protections extend to the Speaker's decisions—provided those powers are exercised in accordance with the Rules of Procedure of the House.
The Speaker's Authority under the Tenth Schedule:
The Tenth Schedule of the Constitution vests supreme authority in the Speaker to adjudicate member disqualifications; consequently, courts lack the jurisdiction to intervene in this domain[7]. Under Paragraph 8, the Chairman or Speaker is empowered to establish rules to implement the Schedule's provisions. These rules must subsequently be tabled before the House. Furthermore, Paragraph 7 bars the jurisdiction of courts regarding any matter connected to the disqualification of a House member.
In Ravi S. Naik v. Union of India[8], the Supreme Court held that the disqualification rules framed under Paragraph 8 of the Tenth Schedule—intended to regulate the Speaker's procedure under Paragraph 6—are procedural in nature. Consequently, any violation of these rules constitutes a mere 'irregularity in procedure,' which is immune from judicial scrutiny under Paragraph 6(2). However, the Court clarified that judicial review of an order passed by the Speaker under Paragraph 6(1) remains available, though confined to breaches of constitutional mandates.
In Dr. Kashinath G. Jalmi v. The Speaker[9], the court observed that the Speaker of the Legislative Assembly possesses no power of review under the Tenth Schedule. Consequently, a disqualification order issued under Paragraph 6 is final insofar as the Speaker is concerned and is subject to correction only through judicial review.
In Mayawati v. Markandeya Chand[10], while discussing the conditions for a valid split or defection, Chief Justice Punchhi made a passing reference to the scope of judicial review. He opined that the act of recognizing the 'time of defection' is an administrative action, distinguishing it from the quasi-judicial orders passed by the Speaker under the Tenth Schedule.
Judicial Review: Striking Down Paragraph 7 of the Tenth Schedule:
In Kihoto Hollohan v. Zachilhu[11], the Supreme Court struck down Paragraph 7 as unconstitutional, ruling that it impermissibly curtailed the powers of judicial review vested in the Supreme Court and High Courts under Articles 136, 226, and 227. The Court held that the Speaker's decision is subject to judicial review if the order violates constitutional mandates, fails to comply with the principles of natural justice, or suffers from perversity. However, by a majority decision (Rajendra Singh Rana), the Court upheld the validity of the remaining provisions, holding them to be severable from Paragraph 7.
In Ravi S. Naik v. Union of India, a pivotal issue before the Court was whether a Speaker's disqualification order is subject to constitutional scrutiny. The Court held that judicial review of such an order is permissible, notwithstanding the finality granted to the Speaker's decision under Paragraph 6 of the Tenth Schedule.
The issue finally came before the Supreme Court in Rajendra Singh Rana v. Swami Prasad Maurya[12]. The Supreme Court observed that a Speaker's decision is not immune to judicial review; it remains subject to scrutiny on grounds of bias, perversity, or violations of natural justice. In this instance, the Speaker failed to exercise his jurisdiction under Paragraph 6 by leaving the disqualification issue undecided in his original order. Furthermore, he erroneously accepted a "defection" based solely on a claim without verification. Because the Speaker specifically refrained from deciding the disqualification of the 13 MLAs, the Court held that this jurisdictional error justified interference through judicial review.
Judicial Review: Speaker's Decisions vs. Fundamental Rights:
While the Speaker holds vast constitutional powers, that authority is not absolute. For instance, a Speaker cannot compel members to prioritize their rulings over court orders or judgements. Furthermore, the powers, privileges, and immunities granted under Articles 105 and 194 serve as a check on the Speaker; should a ruling become arbitrary or unconstitutional, these protected rights prevail.
In Gunupati Keshavram Reddy v. Nafisul Hasan[13], the Supreme Court exercised its Article 32 jurisdiction to issue a writ of habeas corpus against a Speaker who had arrested a member for contempt. The Court ordered the release of the detenue, affirming that the right to be produced before a magistrate under Article 22(2)[14] takes precedence over legislative custody. This landmark ruling clarified that legislative privileges under Articles 105 and 194 are subject to the fundamental rights of citizens.
In MSM Sharma v. Shri Krishna Sinha[15], a journalist challenged a breach of privilege notice under Article 32, alleging violations of his fundamental rights under Articles 19(1)(a) and 21. The Supreme Court held that the legislature has exclusive jurisdiction to control the publication of its proceedings and determine breaches of privilege. The Court clarified that as long as the legislature acts within its rules of business, mere procedural non-compliance is not a valid ground for judicial intervention via a writ.
In State of Kerala v. R. Sudarsana Babu[16], the court examined whether a court of law could take cognizance of a complaint against the Speaker for actions deemed discriminatory or violative of fundamental rights. The court held that a petition under Article 226 is maintainable, ruling that the legislature is "the State" under Article 12. Therefore, the Speaker's actions and the assembly's rules of procedure (under Article 208) are subject to judicial review and cognizance if they infringe upon fundamental rights.
In Keshav Singh v. Speaker, Legislative Assembly (UP)[17], the Court held that while legislatures possess the power to punish for contempt, such authority is not absolute. If an exercise of legislative privilege results in the deprivation of personal liberty, a citizen has the fundamental right to seek judicial redress under Articles 32 or 226.
In O.S. Manian v. Speaker, Tamil Nadu Legislative Assembly[18], the court addressed whether the Speaker could override a member's fundamental rights under Article 22(2) by arresting them pursuant to an Assembly resolution. The court held that legislative privileges must be exercised in harmony with the Constitution, ensuring that no fundamental rights of a member are violated.
The Raghav Chadha-BJP merger: scope of judicial review and my closing thoughts:
Under Articles 122 and 212, legislative proceedings enjoy immunity from judicial oversight, provided they do not contravene constitutional provisions. Where such violations occur, the judiciary may intervene via Articles 32 and 226. Furthermore, the precedent established in Rajendra Singh Rana v. Swami Prasad Maurya clarifies the scope of judicial review over the Speaker's authority. It affirms that decisions regarding disqualification, defection, or mergers remain subject to judicial scrutiny and do not enjoy blanket immunity.
An MP cannot defect to another party without violating the law; the Supreme Court famously termed such an act a "constitutional sin" in Union of India v. Harish Chandra Rawat[19]. In Subhash Desai, the Court emphasized that the Tenth Schedule aims to curb defections from a political party. Consequently, decoupling the legislative wing from its parent organization violates the constitutional scheme. This clarifies that a merger or defection must occur at the level of the original political party, with the support of two-thirds of the legislative party serving as a necessary condition to give it effect.
Whether a Speaker's decision leans pro- or anti-defection, it remains subject to the rule of law.
Author is an Advocate. Views are personal.
Vide paragraph 1(b) of the tenth Schedule of the Constitution (India) ↑
Vide paragraph 1(c) of the tenth Schedule of the Constitution (India) ↑
Under Article 93 of the Constitution, the House of the people shall choose two members of the House to be respectively the speaker and deputy speaker thereof and whenever either office shall choose another member to be speaker or Deputy Speaker. ↑
Regarding the powers and duties to be exercised by the Deputy Speaker, Article 95 of the constitution provides that while the office of speaker be Vacant, those duties shall be performed by a Member of the House appointed for the purpose by the president of India. ↑
Lok Sabha Rules from 360 to 389 provides for the position, powers and functions of the speaker in the Lok Sabha. ↑
Under Articles 122 and 212 of the Constitution, no court of law can inquire about the proceedings of parliament and state legislature. ↑
Under clause 6 of the Tenth Schedule it has been made clear that the decision of the speaker of the House in the matter of disqualification of a member shall be final. ↑
1994 INSC 57 ↑
1993 INSC 128 ↑
1998 INSC 390 ↑
1991 INSC 287 ↑
2007 INSC 139 ↑
AIR 1954 SC 636 ↑
Article 22(2) deals with the right of an arrested person to be produced before a magistrate within 24 hours. ↑
AIR 1960 SC 1186 ↑
1983 ILR (ker) 661 ↑
AIR 1965 SC 745 ↑
2004 MLJ (4) 121 ↑
2016 16 SCC 744 ↑