The anti-defection law: the Tenth Schedule, the whip and the merger exception

The Tenth Schedule, added by the 52nd Amendment in 1985, deals with disqualification on the ground of defection. A member of Parliament or a state legislature may be disqualified if the member voluntarily gives up membership of the political party to which the member belongs, or votes or abstains from voting contrary to a direction, or whip, issued by that party, without prior permission and without condonation by the party within fifteen days. An independent member who joins a party after election, and a nominated member who joins a party after six months from taking a seat, may also be disqualified.

The Schedule contains two main exceptions. A member is not disqualified if the member's party merges with another party and at least two-thirds of the members of the legislature party agree to the merger. A member who is elected as Speaker, Chairman or Deputy Speaker and voluntarily gives up party membership, or rejoins the party after ceasing to hold that office, is also protected. The former exception for a split in a party, which had allowed one-third of members to break away, was removed by the 91st Amendment in 2003, leaving merger as the principal route for a collective change of party.

Questions of disqualification are decided by the presiding officer of the House: the Speaker in the Lok Sabha and state assemblies, and the Chairman in the Rajya Sabha and legislative councils. In Kihoto Hollohan v. Zachillhu in 1992, the Supreme Court upheld the Tenth Schedule but held that a presiding officer acts as a tribunal and that decisions are subject to judicial review. The Court has since pressed for disqualification petitions to be decided within a reasonable time, and in Keisham Meghachandra Singh it indicated three months as a reasonable outer limit in the absence of exceptional circumstances.

The law therefore trades one democratic value against another. It protects governments from instability caused by individual defections, but it also strengthens party leadership over individual legislators, because a member who votes against the whip on a matter of conscience risks losing the seat. Students should distinguish defection, which is a change of party allegiance, from dissent, which may be expressed in debate, in committees or, where the whip does not apply, in a vote.