When the Tenth Schedule was enacted, its sole purpose was to slay the ghost of political opportunism and protect the sanctity of the people's mandate. But decades later, a striking paradox has emerged: has the anti-defection law transformed from a deterrent into a defence mechanism? The dramatic collapse of the Trinamool Congress (TMC) in June 2026 perfectly illustrates this systemic shift. Led by four-time MP Kakoli Ghosh Dastidar, a staggering 20 out of 29 TMC Lok Sabha MPs broke away to support the BJP-led NDA, mirroring an earlier massive split where 60 of the party's 80 MLAs revolted in the West Bengal Assembly. Amendments meant to strengthen legislative stability have inadvertently engineered a flawless, protected path for bulk defections. By shielding a two-thirds majority while crushing individual dissent, the law is systematically cannibalizing regional parties and paving the way for unilateral, single-party dominance.
The current law to govern the defection practice is the Anti-Defection Law of 1985, listed under the Tenth Schedule of the Indian Constitution. It basically prohibits elected representatives from changing their political parties on the basis of personal opportunism, treating voluntary resignation from a party or voting against the party whip as grounds for immediate disqualification. To curb the frequent misuse of this provision which effectively legitimized mass defections the Parliament enacted the 91st Constitutional Amendment Act of 2003. This amendment completely deleted the one-third split exception, making individual or minor group defections strictly punishable. Today, the law only shields a breakaway faction if it constitutes at least two-thirds of the legislative party and subsequently merges with another political entity, thereby raising the legal bar to ensure greater ministerial accountability and political stability.
The Emerging Trend
There has been a fierce debate on the effectiveness of the Tenth Schedule, as many legislators have increasingly adopted clever workarounds like the mass resignation approach, to strategically bring down the effective strength of an Assembly, bypass the law, and facilitate a swift government change. In India's shifting political landscape, politicians and parties have masterfully engineered ways to navigate around the anti-defection provisions without technically violating the law.
The most common loophole relies heavily on pure mathematics by exploiting the two-thirds merger rule. Under this provision, if two-thirds or more of a party's legislative or parliamentary wing decide to move as a collective bloc, they can merge with another political entity without facing disqualification. We saw this exact blueprint unfold when 7 out of 10 Aam Aadmi Party (AAP) Rajya Sabha MPs, including high-profile faces like Raghav Chadha and Swati Maliwal collectively broke away to merge with the BJP, safely hitting the required two-thirds threshold to retain their seats.
A near-identical script played out nationally when the TMC parliamentary party collapsed after a staggering 20 out of its 28 Lok Sabha MPs, led by chief whip Kakoli Ghosh Dastidar, defected en masse to support the BJP-led National Democratic Alliance (NDA). Because this rebel faction constituted more than two-thirds of the party's strength in the Lower House, the anti-defection law remained completely toothless.
Does the Legislative Party Decide Independently of a Merger?
In recent political practice, the concept of a merger has been reduced to a numbers game, the purely mathematical joining of two-thirds of a legislature party inside a concerned House to form a separate bloc or cross over to another party. This blueprint was seen when 7 out of 10 Aam Aadmi Party Rajya Sabha MPs moved as a bloc, when 20 out of 28 Trinamool Congress Lok Sabha MPs broke away. Legally, however, the text of the Tenth Schedule tells a completely different story. Under Paragraph 4, Clauses (1) and (2) of the Tenth Schedule, a legislature party cannot independently manufacture a merger out of thin air. Clause (1) stipulates that a merger is valid only when the original political party on the organizational setup outside the assembly, decides to merge with another political entity. Only after this foundational organizational merger takes place does Clause 2 step in as a defensive shield, protecting the sitting MPs or MLAs from disqualification, provided that not less than two-thirds of the members of that legislature party agree to become part of the newly merged entity.
Despite this unambiguous constitutional dual-lock mechanism, almost all recent high-profile "merger" cases have been entirely engineered and executed from the inside out by the legislative wing alone, in direct violation of the original spirit of the Tenth Schedule. Elected representatives routinely use their collective numbers on the floor of the House to declare a structural merger, bypassing any formal consultation, resolution, or institutional merger deed by the parent political party. By treating a qualifying condition of the two-thirds rule as an independent right, these factions successfully execute political walkouts without the involvement, consent, or structural dissolution of the real political parties that actually distributed the election tickets, thereby turning a law meant to prevent opportunism into a mechanism that shields bulk defectors.
The Urgent call to halt mass defection
To plug the critical loophole of wholesale defections under the Tenth Schedule, constitutional experts and statutory bodies, like the Law Commission of India, have long advocated for a further amendment to completely delete Paragraph 4 the two-thirds merger exemption just as the 91st Amendment erased the one-third "split" provision. In curing this mass defection practice, India can draw inspiration from foreign jurisdictions that implement absolute numerical bans on mergers to safeguard the electorates' mandate. For instance, South Africa completely abolished its 10% "floor-crossing" merger window via its Tenth Amendment Act of 2008, rendering any legislative switch an immediate ground for a vacated seat.
Similarly, Bangladesh enforces a strict ban under Article 70 of its Constitution, providing zero numerical escape routes; if an MP leaves or votes against their party, they are instantly disqualified, regardless of whether the entire parliamentary group stands with them. By adopting a similar zero-tolerance framework and eliminating the mathematical shield of two-thirds mergers, India can ensure that if legislators desire to change their political colors, they must first return to the public square to seek a fresh, honest mandate.
Curbing or Cultivating
To enforce an intent to curb the evil of political defections, India's experience of nearly 40 years with the anti-defection law has been completely failed. We need urgent action on stopping such practices, including court intervention to align the people democratic mandates. Unlike India's loophole, where a legislative faction can unilaterally declare a merger based on a two-thirds count, Kenya's Political Parties Act mandates that a merger is an institutional decision executed solely by the central organizational parties, completely stripping fluid MPs or MLAs of the power to fabricate floor-crossing splits.
True democracy in India cannot survive on a single national narrative. While the Anti-Defection Law was meant to bring political stability, its loopholes are increasingly being used to engineer 'legal mergers' that erase local identities. For Indian democracy to remain strong and truly federal, the ruling party has a constitutional and moral duty to respect, protect, and coexist with regional parties rather than systematically dismantling them.
Author is a Law student at Jamia Millia Islamia University. Views are personal.