Revisiting the Tenth Schedule : Merger qua defection

Aggrieved over purported  "deliberate in action" on his petition dated 18 June, 2026, seeking disqualification of twenty TMC MPs of Lok Sabha,  Abhisek Banerjee, Trinamool General Secretary, filed a writ petition in the Supreme Court, praying to call for records of all pending disqualification petitions filed against the 20 MPs elected on the symbol of TMC for voluntarily giving up the membership by conduct under 2(1) (a) of Xth Schedule, or, in the alternative,  issue a writ of mandamus  to the Speaker, Lok Sabha  to adjudicate  his application  within set time-frame as per law laid down in Kesham Meghachandra Singh  v. The Hon’ble Speaker, Manipur Legislative Assembly, 

The ratio decidendi of the judgement supra is that the Speaker cannot infinitely delay the adjudication. In the said judgment, the Three-Judge Bench of the Supreme Court, comprising of Hon’ble Justices R.F. Nariman, Aniruddha Bose and V. Ramasubramanian, held that "The only relief that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. In case, no decision is forthcoming even after a period of four weeks, it will be open to any party to the proceedings to apply to this Court for further directions/reliefs in the matter."  Notably, the Court also observed- "It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartiall…". However, no legislative initiative has been taken in this regard so far. 

The Speaker, Lok Sabha has since caused the notices to be issued to the said MPs directing them to respond within seven days.  Under paragraph 6 of the Tenth Schedule, the question whether the said MPs have become subject to disqualification have to be decided by the Speaker.    There are significant allied questions which have far-reaching implications. The allegation of the Abhisekh Bannerjee is that the respondent 20 MPs have voluntarily given up their membership and therefore they must be disqualified under paragraph 2(1) (a) of Xth Schedule.  The respondent MPs may take refuse under paragraph 4 of the Xth Schedule and claim immunity from disqualification on the ground of merger of two-thirds of the members in a new party. Unless, the Speaker decides, no Court can entertain a petition for disqualification under the Tenth Schedule, except on grounds of inaction or unusual delay in deciding the matter.  The decision of the Speaker can only be subject to judicial review in view of the judgment of the Supreme Court in Kihoto Hollohan v. Zachilhu and Others.

Now, the ball is in the Court of the Hon’ble Speaker.  It is a question of defection by two-thirds members of the TMC Legislature Party in the Lok Sabha. Paragraph 4 of the Tenth Schedule says that disqualification on ground of defection not to apply to those members who merge with another political party or who have not accepted the said merger and opted to function as a separate group.  The TMC led by Abhishek Banerjee have not accepted the merger and though the legislature party group led by him is nearly one-third of the original legislature party, his group will continue to function validly as such.  The two-thirds group consisting of 20 members would have had a stronger case, had they merged with any political party in the legislature, that is, a legislature party in the Lok Sabha. Paragraph 1 of the Tenth Schedule enshrines the rule of interpretation of the Tenth Schedule. It says "House" means the House of the legislature and political party means "all the members of that House for the time being belonging to that political party". So, while determining whether a group of members, though constituting two-thirds of the original legislature party, in order to escape disqualification on ground of defection, must join any legislature party of that House, though the question of giving up membership voluntarily remains a matter of fierce legal contest.  For instance, the defecting group consisting two-thirds of the members of the Aam Aadmi Legislature Party in the Rajya Sabha, who joined the BJP Legislature Party in the Rajya Sabha, were not disqualified by the Chairman, Rajya Sabha.  Of course, the final verdict will be known only when the review petition is decided by the Supreme Court being the final arbiter as the larger question is that a political party is a much bigger entity that a legislature party in a House and the term two-thirds of the legislature party in a House runs counter to the spirit of anti-defection law as instead of curbing defections, it facilitates wholesale defections. 

Notably, the National Citizens Party of India (NCPI) is not a legislature party in the Lok Sabha. It even does not have a single member in the Lok Sabha, or for that matter, in any of the Legislatures. The NCPI is a registered, unrecognised party from Tripura but came into limelight only after the self-acclaimed merger of the defecting group of TMC in it.  If the explanation of the said MPs is accepted, the NCPI will emerge first time a Legislature Party in the Lok Sabha, which virtually amounts to formation of a new legislature party in the Lok Sabha.  Their own declaration of affiliation with NCPI cannot, ipso facto, erase their original party status as they were elected on the symbol of TMC, keeping in view the judgement of the Supreme Court in G. Viswanathan v. the Hon’ble Speaker, Tamil Nadu Legislative Assembly. Moreover, the defence of split is no longer available to members facing disqualification proceedings after deletion of para 3 from the Tenth Schedule by the 91st Constitution Amendment, a position reiterated by the Apex Court in Subhash Desai case.  However, its truism that no two cases are exactly alike and the adjudicating authority is duty-bound to consider the peculiar facts and circumstances of the case, having regard to the objective of the anti-defection law and the imperative need to curb rampant defections. What interpretation is given to the Tenth Schedule by the Speaker, Lok Sabha in exercise of quasi-judicial power vested in him and in his sagacity and wisdom, is a matter of great and wider public interest. After all, the Speaker is venerated for his sense of impartiality, independence and fairness and is rightly considered to be the symbol of our parliamentary democracy.

The author is a member of the Supreme Court Bar Association; Views presented are personal.