The anti-defection law is four decades old. It has seen so many breaches and frequent violations that it seems to have lost its biting teeth.

The law is faced with a misconceived narrative that 2/3rd of the legislative party members can defect to avoid disqualification under the 2003 amendment laws.

Secondly, the Election Commission is dragged into the fray, though it does not possess jurisdiction whatsoever in matters of disqualification.

The 'Original political party' of a legislator remains the same, as defined in para (1c) read with explanation (a) of para 2 of Xth Schedule, the political party which set up him or her a candidate for election as such member, which gave him or her the party ticket and symbol to contest, no matter if a group has separated or caused a split later after a win. The Election Commission cannot jump into the political battle to recognize a split group or grant another symbol and fridge the original one. As the original party remains the same. This aspect has not been considered by the Constitution Bench judgement in Subhash Desai (Maharashtra) matter, perhaps not raised. The approach of the Hon'ble Court for grant of Symbol by EC and exercise by Speaker to determine real party based on communication by the split group is manifestly contrary and of no consequence for purposes of defection to obviate disqualification.

The Anti-Defection Law, as amended in 2003, is a standalone piece of legislation, and in no way can a legislature obviate disqualification under Para 4 of the Xth Schedule, unless the Original Political Party merges with another party which is agreed to by 2/3rd of the legislative party members. Those who don't agree with the merger can walk away without incurring disqualification. This is the essence of anti-defection law which is duly observed in Subhash Desai's case as well.

To recapitulate the circumstances leading to the enactment of law, between 1967 and 1972, nearly 2,000 of India's roughly 4,000 MPs and MLAs deserted the parties on whose ticket they were elected; by 1971, close to half the legislators in some assemblies had crossed the floor, several more than once. Of 210 defectors in the first year of what came to be called "Ayaram Gayaram" politics after Haryana's Gaya Lal, who changed parties thrice in a fortnight in 1967 - 116 walked straight into ministerial office.

Perceived as a vital initiative for ensuring that Parliament has a semblance of stability, the 52nd Amendment Act, 1985, introduced the Tenth Schedule as "the first step towards clearing up public life." However, it carried the seed of its own defeat - Paragraph 3 permitted a "split" to escape disqualification whenever one-third of a legislative party broke away together. Conceived as a safeguard for genuine dissent, it instead became the standard mechanism for engineered defections, nowhere more so than in Goa, which burned through seven Chief Ministers between 1990 and 2000 on the strength of repeated one-third splits.

Despite the Supreme Court, in Kihoto Hollohan v. Zachillhu, upholding the validity of the Xth Schedule while striking down the finality clause attaching to the Speaker's order and thereby subjecting it to judicial scrutiny, that avenue of review has become central to the present functioning. Speakers have routinely delayed rulings on disqualification petitions, compelling the interference from the courts even at the interim stage. In the Manipur case of 2020, a three -month deadline was laid down by the court for disposal of such cases by the speakers. Again, in the Telangana Matter, the court criticized the Speaker for a year-long delay on petitions against defecting Bharat Rashtra Samithi legislators. Even the Dinesh Guswamy Committee recommended to withdraw this power from speaker and confer to the President/Governor. The role of Speakers has always been questionable as even though they are supposed to act as a neutral Tribunal discharging high Constitutional responsibility but they owe their position to the party which structurally unsuited to adjudicate disqualification proceedings. Always attempt is to gain time before Speaker or in Court proceedings to make the issue infructuous to defeat the law. Obvious recommendations came from the Law Commission of India in its 170th and 255th report concurred with the proposition to divest the Speaker from such powers.

The Shiv Sena and NCP splits of 2022 remain the most glaring illustrations. While it was unexpected, it was definitely not surprising. The Maharashtra Speaker did not rule on the disqualification petitions until January 2024, striking that split legislative group, and not the Original Political Party became the “real” Shiv Sena and dismissing the petitions against it. This is palpably erroneous.

The concept of “real party” is alien to Xth Schedule including the role of ECI which aspect was not considered by the Supreme Court.

The very foundation of the defense advanced in both cases is contrary to the Xth Schedule. Paragraph 4 protects members only where the 'original political party' merges with another party, and “if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to that merger. The deeming provision doesn't allow nor it means a split by 2/3rd legislative members but additionally requires agreement to merger by Original Political Party. The Split concept is no more exists in anti-defection laws after 2003 amendments. The claim that 2/3 legislative members can cause merger of original party is completely misconceived.

Paragraph 1(c) carefully distinguishes the “legislature party” from the political party itself. In neither the Shiv Sena nor the NCP episode did any “original political party” merge with another political party rather, what occurred was a breakaway of legislators who then claimed the identity of the original party. That, in truth, can't claim or be deemed “original political party” as defined under Xth Schedule, for any merger to take place. The claim of “original political party” was instead a bamboozling move quite contrary to the spirit of Paragraph 4.

Amusingly, no episode captures the irony of four decades of anti-defection law better than the events of April 2026. In August 2022, as a newly elected AAP Rajya Sabha MP, introduced a Private Member's Bill in Parliament arguing for a tighter anti-defection law, denouncing what he called "nefarious floor-crossing by legislators in total disregard of the democratic wishes of the electorate" and calling the existing Xth Schedule a law that "currently facilitates defection" rather than preventing it.

Less than four years later, seven MPs of AAP(Rajya Sabha) joined BJP, claiming the move as "merger" on the ground of two-thirds had consented to it. Sources reveal that the same was accepted by the “Hon'ble Chairman Rajya Sabha. The claim of merger by itself is contrary to Paragraph 4 of the Xth Schedule, as 2/3rd of legislative party join together has no locus nor “merge” “the original political party” by their own numerical strength. They don't constitute Original Political Party. Paragraph 1(c) carefully distinguishes the “legislature party” from the political party, and the two are not interchangeable. A breakaway faction cannot, effect a merger of the original political party that set up him a candidate and granted him a symbol. In Subhash Desai, the court categorically ruled out split after deletion of para 3 in Xth schedule and also explained the import of para 4 and its requirement.

The test mandatorily requires merger only by the “Original Political Party', and agreed to by 2/3rd members of legislative party which alone the Speaker is required to consider. Even the court that faction not accepting merger can put up defense and avoid disqualification. The state government ought to have been restored.

Similarly, in case of AAP or even TMC the 'original political party' had not merged; rather, a group of its legislators had chosen to walk across which legally speaking, would be flouting the anti-defection law.

No doubt in Xth Schedule, Speakers were chosen because he is privy to records and conduct of legislature but his partial role is defeating the solemn legislation “as a step towards cleaning up public life”, as originally contemplated. Enactment of law is one thing but its implementation is more important. It shouldn't be destroyed in any way but serve the public faith. The anti-defection law will remain a solemn text whose operation depends less upon its letter than upon the morality of those entrusted with its enforcement.

Author is a former President of Delhi High Court Bar Association & former Chairman of Bar Council of Delhi. Assisted by Ishanvi Bansal. Views are personal.