Anti-Defection Law: Merger Or Mirage?

On 24 April 2026, the political developments involving Raghav Chadha and Aam Aadmi Party brought the anti-defection law back into sharp focus. Interestingly, the date carries a distinct constitutional significance. On 24 April 1973, the Supreme Court delivered its landmark judgment in Kesavananda Bharati v. State of Kerala, laying down the basic structure doctrine - a doctrine that safeguards the core features of the Constitution, including democracy itself.

The present episode raises a very important question: Can two-thirds of legislators, acting on their own, manufacture a merger under the Tenth Schedule?

Logic Behind the Tenth Schedule

The Tenth Schedule was introduced by the Constitution (Fifty-Second Amendment) Act, 1985 to combat what Parliament described as the “evil of political defections”, a phenomenon that had begun to destabilise governments and erode public trust. Legislators, elected on the ideological platform of one political party, were frequently shifting allegiance post-election, altering the composition of the House and even toppling governments.

This was not merely a question of political opportunism. It struck at the heart of representative democracy. Voters cast their ballots not only for individuals but for party-based ideologies and programmes. When a legislator defects, the electorate's mandate is effectively rewritten after the fact.

The Supreme Court has consistently recognised this foundational concern. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court upheld the constitutional validity of the Tenth Schedule, highlighting its role in preserving democratic stability. Similarly, in S. R. Bommai v. Union of India (1994) and Kuldip Nayar v. Union of India (2006), the Court observed that political parties are central to India's democratic framework, and that the anti-defection law exists to protect that structure.

It follows that any interpretation of the Tenth Schedule must align with this purpose: to deter, not legitimise, defection.

Disqualification Under Paragraph 2

Paragraph 2 of the Tenth Schedule lays down the provisions for disqualification. A member is disqualified if he/she:

1. voluntarily gives up membership of his/her political party; or
2. vote (or abstain) contrary to the party whip without authorisation.

The phrase “voluntarily gives up membership” has been interpreted broadly. In Ravi S. Naik v. Union of India (1994), it was held that resignation is not necessary and that conduct alone may suffice to infer that a member has abandoned the party. This was reiterated in G. Viswanathan v. Speaker Tamil Nadu Assembly (1996), where even expelled members were held to continue belonging to their original party for the purposes of disqualification, and joining another party amounted to “voluntarily giving up” membership.

Thus, Paragraph 2 casts a wide net, ensuring that defections cannot escape scrutiny through technicalities.

Paragraph 4 and the Structure of “Merger”

Paragraph 4 carves out a narrow exception. It provides that disqualification under Paragraph 2 will not apply if:

1. the original political party merges with another political party; and
2. not less than two-thirds of the members of the legislature party agree to such a merger.

The question is whether these two conditions are independent, or whether the second is contingent upon the first.

A careful reading of the provision suggests that the merger of the original political party is the foundational event, while the two-thirds requirement is a qualifying condition that determines whether individual legislators may claim its benefit. The structure of the paragraph, particularly the opening words, “where his original political party merges…”, makes this clear.

To read the provision otherwise would invert its logic. It would mean that legislators could create a merger by sheer numerical strength in the house, even if the political party itself had taken no such decision. Such interpretation not only strains the text, but also undermines the purpose of the Tenth Schedule.

Political Party vs Legislature Party

This interpretation endorsed above is supported by the distinction the Constitution itself draws between a “political party” and a “legislature party.”

Paragraph 1(b) defines a legislature party as the group of members in a House belonging to a political party. Paragraph 1(c) defines the “original political party” as the party to which the member belongs for the purposes of Paragraph 2. Therefore, the legislature party is derivative of the political party, not its equal.

In Mayawati v. Markandeya Chand (1998), the Supreme Court rejected the argument that the term “political party” could be read as “legislature party,” noting that such an interpretation would render provisions of the Tenth Schedule redundant. More recently, in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), the Court held that the political party and its legislative wing are distinct entities, and cautioned against equating the two.

The Fallacy of “Two-Thirds Alone”

The argument that two-thirds of legislators can, by themselves, effect a merger rests on a fundamental misconception that numerical strength can substitute for a party-level decision. A useful analogy can be drawn from the now-deleted Paragraph 3 of the Tenth Schedule, which dealt with “splits.” In Rajendra Singh Rana v. Swami Prasad Maurya (2007) , the Supreme Court rejected the so-called “two hats theory,” which treated legislators as simultaneously representing the political party and acting independently as a legislative group. The Court held that a valid split required both:

1. a split in the original political party; and
2. a corresponding division in the legislature party.

The same logic applies to mergers under Paragraph 4. If a split could not be inferred merely from the conduct of legislators, a merger cannot be manufactured by them. The event must originate in the political party itself.

Preventing Constitutional Evasion

Constitutional interpretation does not occur in a vacuum. The Tenth Schedule must be read in light of its purpose i.e., to prevent defections that subvert democratic mandates. Defection is a “constitutional sin.” In Nabam Rebia v. Deputy Speaker Arunachal Pradesh (2016) and Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), the Court stressed upon the need to interpret the Tenth Schedule in a manner that preserves its anti-defection objective.

Allowing legislators to claim merger protection solely on the basis of numbers would effectively neutralise this objective. It would enable precisely the kind of opportunistic realignments the Tenth Schedule was designed to prevent, all while cloaking them in constitutional legitimacy. In practical terms, Paragraph 4 would cease to be an exception and become a loophole.

Present Controversy

Applying these principles to the current situation, the position becomes relatively clear. If the original political party has not merged with another party, then the first condition of Paragraph 4 is not satisfied. In such a case, even if two-thirds of the legislators choose to join another party, their actions would fall within the ambit of Paragraph 2.

Moreover, their conduct (aligning with another political formation) may well amount to “voluntarily giving up membership,” as understood in Ravi S. Naik v. Union of India (1994). The absence of a formal resignation would not alter this conclusion.

Restoring Constitutional Discipline

The Tenth Schedule rests on a simple but important premise: political loyalty, once endorsed by the electorate, cannot be casually abandoned. Paragraph 4 does not dilute this principle. It accommodates a narrow exception where the political party itself undergoes a structural transformation through merger.

To interpret the provision as allowing legislators to create that transformation would invert the constitutional design. It would elevate the legislature party over the political party, and numbers over principle.

The question is not merely about textual interpretation, but about constitutional discipline. If numerical majorities in the legislature could manufacture mergers at will, the Tenth Schedule would cease to function as a safeguard against defection and instead become its most sophisticated disguise.

A merger under the Tenth Schedule is not born in the legislature. It must originate in the political party.

Author is a faculty and mentor at LiveLaw Academy. Views are personal.