The anti-defection law: what the Tenth Schedule says and who decides
Since 1985, an elected member who leaves the party that put them in the House can lose their seat. The Tenth Schedule sets out when, and who decides. Here is the law, and the court rulings that shaped it.
By the Janadesh Online editorial team. Facts last checked against the sources below on 25 September 2026.
Where the law comes from
The Tenth Schedule was inserted into the Constitution by the Constitution (Fifty-second Amendment) Act, 1985, and came into force on 1 March 1985. Until then the words "political party" did not appear in the Constitution at all; the Schedule gave parties constitutional recognition for the first time.
When a member is disqualified
- Voluntarily gives up membership of the party
- Votes or abstains in the House against the party's direction, without prior permission, and the party has not condoned it within 15 days
- An independent member who joins any party after the election is disqualified
- A nominated member who joins a party more than six months after taking their seat is disqualified; joining within six months is allowed
Merger, and the rule that was removed
Paragraph 4 protects members when their party merges with another. A merger is deemed to have taken place only if not less than two-thirds of the members of the legislature party have agreed to it. Members who do not accept the merger and choose to function as a separate group also do not incur disqualification.
The law once had a second exception for a split: a faction of at least one-third of the legislature party was protected. That paragraph was omitted by the Constitution (Ninety-first Amendment) Act, 2003, with effect from 1 January 2004. The one-third figure applied to splits, which no longer protect anyone. The merger exception has required two-thirds from the start.
The same amendment barred a member disqualified under the Schedule from being appointed a minister, or from holding a remunerative political post, until the term ends or they are re-elected, whichever comes first. It also capped the size of the Council of Ministers at 15% of the House.
Who decides, and what the courts have said
Under paragraph 6, any question of disqualification goes to the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha or the Assembly, and the original text made that decision final. Paragraph 7 went further and said no court had jurisdiction.
- 18 Feb 1992, Kihoto Hollohan v. Zachillhu
A five-judge bench, by a 3:2 majority, struck down paragraph 7, because it had not been ratified by half the states as the Constitution requires for such a change. The rest of the Schedule stands. The Speaker acts as a tribunal and the decision can be reviewed by courts on limited grounds, such as mala fides, perversity or a violation of a constitutional mandate.
- 21 Jan 2020, Keisham Meghachandra Singh v. Speaker, Manipur
The Court said that, absent exceptional circumstances, three months from the filing of the petition is the outer limit for the Speaker to decide. It also said Parliament may seriously consider replacing the Speaker with a permanent tribunal headed by a retired judge.
- 31 Jul 2025, Padi Kaushik Reddy v. State of Telangana
The Court directed the Telangana Speaker to decide petitions against ten MLAs within three months, repeated the three-month limit, and said the Speaker has no constitutional immunity from judicial scrutiny.
The law itself sets no time limit for the Presiding Officer to decide, which is why the Court has stepped in. Neither judgment has been followed by an amendment to the Schedule; we found no reported change to the Tenth Schedule after 2003.
A live matter, as reported: on 23 September 2026 the Supreme Court is reported to have called the Lok Sabha Speaker's roughly three-month delay on petitions against 20 rebel Trinamool Congress MPs a "red flag" and to have asked the Solicitor General to explore a timeline. That matter is unresolved and this page does not predict its outcome. A separate Supreme Court reference on whether a pending notice to remove the Speaker bars the Speaker from deciding these petitions was made in the 2023 Maharashtra case; we could not verify its current status.
Frequently asked questions
When did the anti-defection law come into force?
The Tenth Schedule came into force on 1 March 1985, inserted by the 52nd Amendment.
How many members must agree to a merger?
Not less than two-thirds of the members of the legislature party. The one-third rule was for splits, which the 91st Amendment removed from 1 January 2004.
Who decides whether a member is disqualified?
The Presiding Officer of the House: the Chairman of the Rajya Sabha, or the Speaker of the Lok Sabha or the state Assembly. Since Kihoto Hollohan (1992), courts can review that decision on limited grounds.
Is there a time limit for deciding a petition?
The Schedule sets none. In Keisham Meghachandra Singh (2020) the Supreme Court said that, absent exceptional circumstances, three months from the filing of the petition is the outer limit.
Can an independent MLA join a party?
Not without consequences. An independent member who joins any political party after the election is disqualified.
Sources
- Rajya Sabha at Work, chapter 10: Anti-defection law (PDF)
- Supreme Court: Kihoto Hollohan v. Zachillhu, 18 February 1992
- Supreme Court: Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, 21 January 2020
- Supreme Court: Padi Kaushik Reddy v. State of Telangana, 31 July 2025
- PRS: The anti-defection law explained
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