We have done it. Yes. You, I and all of us have finally seen the creation of the second largest party in Parliament without it being ever elected on its own symbol. Whatever the money the party in Andhra Pradesh might have spent on having its MPs elected, or whichever strategy the party in Bihar might have adopted in having its MPs elected, they have been trumped by the new bhangima of the great dance that Indian electoral politics has become. A group of 20 MPs from the All India Trinamool Congress have sought to merge their parliamentary party with the Nationalist Citizens Party of India. If electoral bonds were still around, the NCPI would have had a great chance of accumulating a couple of hundred crores of rupees at least, given their new strength. What a shame. Snide remarks aside, this is an important moment, and it has been so since 2019, in electoral politics to understand in a more systematic way than saying “look how they dismantled the elected opposition.” Reported The Hindu.
For me, what I can see is that as soon as the Trinamool lost power in Bengal, those 20 representatives of people who fought on the plank of the Trinamool shifted their allegiance to NDA. That is the objective truth. The reasons i.e., whether they shifted their allegiance due to a fear of getting hounded by the ED, or due to there being no reason to be obedient to the Trinamool leadership anymore or due to the change in their own value system which now pushes them to support NDA, these could be multiple. Irrespective of the reasons, this article tries to understand the implications of this shift or any shift of political allegiances for that matter for the Indian polity, what it means for our Constitutional Democracy and where does the Tenth Schedule of the Indian Constitution sit in all of this.
The framers wrote no anti-defection provision into the document that took effect in 1950. This was less an oversight than a reflection of the assumptions of the age. The very term “political party” did not appear in the original Constitution; the framers conceived of Parliament as an assembly of representatives, not as a battlefield of disciplined party blocs. India had borrowed the Westminster model, in which party loyalty was a matter of political convention rather than constitutional law and where a member who “crossed the floor” answered to his conscience and his constituents.
There was a deeper philosophical inheritance too. The Burkean ideal of the representative — the member who owes the electorate his judgement and not merely his obedience — sat comfortably with a freedom movement whose leaders had been chosen for their moral standing. In the first decade after independence, defection was rare until the Congress started to lose the states. The four years between 1967 and 1971 saw 142 defections in Parliament and 1,969 in the state assemblies. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial berths. Roughly half of the nearly four thousand legislators elected in 1967 and 1971 changed sides at least once. The link between the vote and the seat had broken.
It was this period, often called the era of “Aaya Ram Gaya Ram” politics, that turned defection from an occasional embarrassment into a structural crisis. The phrase itself came from a Haryana legislator who switched parties three times in a single day in 1967, and it entered popular vocabulary as shorthand for the mercenary nature of Indian legislative politics. Governments were being made and unmade in backroom negotiations, with ministerships traded like commodities. The democratic process, in effect, had been reduced to the first act of a play whose second act was written entirely by party managers and power brokers. The public mandate, once given, seemed to dissolve the moment the results were declared.
How the Tenth Schedule came to be?
Following the report of the Y. B. Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections. The first was made by Indira Gandhi’s home minister, Uma Shankar Dikshit, in 1973; the second, in 1978, by Shanti Bhushan, minister for law and justice in the Janata Party government of Morarji Desai. It was only in 1985, under Rajiv Gandhi’s government, that the Fifty-second Amendment inserted the Tenth Schedule. Its purpose was to address the culture of defections.
The mechanism was simple. A legislator would be disqualified if he voluntarily gave up the membership of his party or if he voted or abstained against the direction of his party whip. Two escape hatches were built in: a “split” involving one-third of the legislative party and a “merger” involving two-thirds. The split provision became the law’s most exploited loophole, and the 91st Amendment of the Indian Constitution (2003) removed it, leaving only the two-thirds merger.
Essentially, it is a constitutional provision engineered to discourage defections from one party to another, of legislators, except when an overwhelming majority of the legislators, as decided by the upper echelons of the party decide to merge with another parliamentary party. How does the schedule decide if someone switched sides or not? One, if the member voluntarily relinquishes the membership of the political party he was elected from. Two, when she does not vote according to the whip of the political party. The politics of power ensured that much interpretation happens on this schedule. Additionally, the fact that it is the speaker who decides whether an elected representative becomes disqualified or not has made it easier for ruling parties to mend the schedule to fit their whims. A very brief jurisprudential history of the tenth schedule is necessary before a systematic analysis of the philosophy behind it is done
In Kihoto Hollohan v. Zachillhu (1992), a five-judge bench upheld the law by a 3:2 majority, held that courts could intervene only after the Speaker passed a final order, and only on narrow grounds such as mala fides or violation of natural justice. In Ravi S. Naik vs. Union of India (1994) the Court held that “voluntarily giving up membership” need not mean a formal resignation; it can be inferred from conduct. In Rajendra Singh Rana v. Swamy Prasad Maurya(2007) it held that a Speaker’s prolonged inaction is itself open to review. In Keisham Meghachandra Singh vs. Speaker, Manipur Legislative Assembly (2020) it suggested a three-month deadline and openly questioned whether the Speaker should be the adjudicator at all, recommending that Parliament consider a permanent tribunal headed by a retired judge. In Subhash Desai v. Principal Secretary (2023), arising from the Shiv Sena split, it held that the Governor had no business ordering a floor test on the material before him, and that the whip belongs to the political party rather than to the legislature party.
The most recent chapter unfolded in Telangana, and it is the clearest indictment yet. In Padi Kaushik Reddy v. State of Telangana (2025), the Supreme Court held that a Speaker acting as a tribunal under the Tenth Schedule enjoys no constitutional immunity under Articles 122 or 212, and must decide within three months. Yet when the Telangana Speaker finally conducted his in-camera hearings, he dismissed the petitions and cleared the BRS legislators who had joined the Congress, finding no “conclusive documentary or legally sustainable evidence” of defection. How could he? He was elected to the legislature on a Congress ticket. He is neither accountable to the people nor to the court and in that case, it is naïve to expect the speaker to decide in any other way than in ways favoring the existing ruling party.
So, essentially, people can get disqualified but if the speaker deems so, they will not be. The judicial review on the decision of speaker does not have a wide scope. This is the result of the jurisprudence on the tenth schedule until now.
What emerges from this jurisprudential arc is a portrait of an institution trying, case by case, to patch the cracks of a fundamentally compromised design. The judiciary has steadily expanded the grounds for intervention — from conduct-based inference in Ravi S. Naik, to review of inaction in Rajendra Singh Rana, to stripping constitutional immunity in Padi Kaushik Reddy — and yet each judicial correction has only showed how little the law’s original architecture can bear the weight placed upon it. The courts have been forced into the role of reformers precisely because the schedule’s own enforcement mechanism, the Speaker, has repeatedly failed the test of impartiality. This pattern of judicial expansion and executive evasion provides the necessary context for asking the deeper question: what, structurally, makes the Tenth Schedule so easy to circumvent?
Now, we need to, in the context of this knowledge, question, examine, analyse and understand what it is that power defections despite a strong constitutional safeguard against it? There can be many explanations but two should come on top. One, that Tenth Schedule is inadequate in its strength to carry out its endeavour and it is prone to huge exploitation. Second, the Tenth Schedule is being made powerless by institutional ignorance of political realities of India and such powerlessness of the Schedule has created buffers where the ruling political apparatus can operate with impunity.
Inadequacy of the Tenth Schedule
If one reads a single election result-day newspaper and the Tenth Schedule, for the first time, one will easily understand the issue with the Schedule. The Schedule disqualifies those who defect and gives on exception where 2/3 of the members merge, as stated before. Now, when has it ever been the case that a ruling party speaker had to decide something and he/she did so in detriment to the ruling party? In the absence of such convention, the Tenth Schedule added in 1985, places the responsibility on the Speaker to be impartial. There would even be cases in which his own chair will be in danger if he decides in favour the party from which people have defected. The logic behind putting speaker at the centre of the system was not a prudent choice.
The Speaker problem, however, is only one face of the schedule’s inadequacy. Equally troubling is the merger exception itself. By permitting two-thirds of a legislative party to merge with another without attracting disqualification, the schedule inadvertently creates a perverse incentive i.e., rather than discouraging defection, it rewards it so long as it is done at sufficient scale. The very evil the law was designed to cure i.e., the wholesale shifting of political allegiance for the spoils of power, is precisely what the merger clause facilitates when a critical mass can be assembled. What was conceived as a safety valve for genuine ideological realignment has, in practice, become the preferred route for engineered political takeovers. And this structural vulnerability is the mechanism through which the TMC merger described at the outset of this article was made possible.
The whip and the death of debate
Because a legislator must vote as the whip directs on pain of disqualification, he is reduced to a voting machine for the party high command. His conscience, his constituency, and the deliberative function of the legislature are all subordinated to the leadership. The MP or MLA ends up representing neither the nation nor the voters of his constituency but only his political party. A law sold as a defence of democracy has, in practice, hollowed out the independence of the average legislator and concentrated power at the top.
Say for example, take the recent defector who went from TMC to the NCPI- Kakoli Ghosh Dastidar—the MP from Barasat, West Bengal. Imagine if all the electors of Barasat decide that Kakoli Ghosh should in fact support the NDA on the Delimitation Bill, should she not support the NDA? If this scenario occurs, the Tenth Schedule would stand as an impediment to the realisation of people’s goals. If the whip of TMC issues a diktat that all Members of the Parliamentary party shall vote against, Kakoli would be facing a disorienting dilemma—whether to vote for the bill and betray her party or vote against the bill and betray her constituency. Am I trying to say that Tenth Schedule is an impediment to functioning of democracy? No. Let that be clear. However, I am saying that the Tenth Schedule does not anticipate this sort of situation where a representative is understood beyond the party from which they won. Its binary nature, where a representative either obeys the party or disobeys it is too narrow to contain and engage with the intricacies of the Indian electoral politics.
Moreover, there is no way to know whether the electors of Barasat want Kakoli to vote one way or the other in case of any bill. One could argue that the BJP winning majority assembly constituencies in the Barasat Lok Sabha is an indication of the support however, this specific question was not asked to the electorate for us to assume it to be its decision. The constitution, as dynamic and foresighted as it is, has no provisions to understand the will of the people, especially when it seems to be changing in between the election cycle.
Does this mean the Tenth Schedule should not exist? No. It should. The material reality of realpolitik today is that there are resort politics where MLAs and MPs are threatened and wrongfully restrained and are traded across parties. Add to the mix the unholy duo of CBI and ED ready at the command of ruling establishment, institutional support is mandatory for the representatives of people, as ironic as it sounds. The Tenth Schedule in its current form does not give such institutional protection. What it merely does is add a step of buying more MLAs or MPs, for whoever wants to topple governments or merge parties.
In essence, the Tenth Schedule is inadequate in more than one way. On one hand, it does not have the institutional apparatus to engage with real change of values and ideas, real debate between members of parliament, belonging to the same party. It essentially says, if you as a Member of Parliament or the Member of Legislative Assembly have any differences with the party you won from, you better settle them at the headquarters of the Party rather than coming with them to the legislature. This inadequacy serves as a tool in the hands of political parties to divide the house into fewer parts than when it would be divided into if the members were left to their own means or with minimal whip control.
On the other hand, it leaves a big hole in its own regime. While it might be hard to convince a good 60 MPs, it is rather easy, as can be seen, to convince or somehow make 20 MPs of a smaller party to support the ruling government. This becomes a cakewalk when the decision-making power is vested in speaker, a defacto appointee of the ruling government and by extension, the party.
How to fix this?
The remedies have been on the table for decades. Some suggest a narrowing of the scope of the whip. They argue that limiting it to votes that genuinely threaten the survival of a government, namely confidence motions and money bills, and freeing legislators to vote their conscience on everything else will be a better appreciation of the Westminster model of the government.
Another suggestion is to take the decision away from the Speaker and place it in an independent authority like the President or Governor acting on the binding advice of the Election Commission, as the Dinesh Goswami Committee recommended in 1990, or a permanent tribunal headed by a retired judge, as the Supreme Court suggested in Keisham (2020).
While these suggestions are noteworthy and require a serious consideration, it is necessary to note the rot in the Indian electoral politics wherein no amount of freedom can have many of the legislators act with conscience. They all require contracts, tie-ups with big businesses and maintenance of their riches in their own constituencies. This is not a version of ‘cynic-speak’ but a reality that we face today. Many of the members of Parliament have business interests that align and meet with political interests. The average assets of ruling BJP MPs today are Rs. 50 Crore and the opposition Congress MPs’ average assets are Rs. 22 Crore and over 100 MPs’ assets grew by 110% between 2014-2024. To assume that they will use their free conscience is imprudent. Moreover, there are hardly any institutions left in this country where the ruling establishment has not put its hand into and has not started to control. From interpretation of the law to enforcement of the law, from preparation for elections to conduct of elections, the institutions are under a threat of unimaginable proportion. Therefore, if institutions like the President, or the Governor or the Election Commission are to be trusted with the enforcement of a renewed Tenth Schedule, they would not yield any drastically different and positive results than what we have today.
Until now, the discussion has been this. A lot of legislators have been jumping ship. The Tenth Schedule which was brought in to stop exactly that is failing on multiple fronts. One, it is not able to foster a healthy debate between members of parliament due to its archaic notion of party loyalty. Two, it is not able to stop the mass defections, evidently, from one party to another to the extent of destabilising governments and changing popular mandates. For us to somehow put trust in supposedly independent institutions like the President or the Election Commissions to enforce the Tenth Schedule would be imprudent given how their powers are being taken over and how they are becoming mere extensions of the executive.
What is to be done then?
The honest answer begins with admitting that no single institutional fix will suffice, because the problem is not only with the institutions. The issue is rooted in the very relationship between the voter, the representative, and the party. The Tenth Schedule attempted to regulate that relationship from above, by threatening disqualification. What it did not do, and what no amendment since has attempted, is to restructure the relationship from below i.e., by giving the electorate a continuing stake in the conduct of its representative.
We do not have a recall mechanism. Once elected, a legislator is answerable to no one for five years. Not to the voters who sent her to the legislature, not to any independent body tasked with monitoring her fidelity to the mandate on which she sought votes. The Tenth Schedule fills this vacuum by substituting party discipline for popular accountability, but party discipline, as we have seen, is itself a currency that can be bought and sold. A recall provision, carefully designed to prevent its misuse as a tool of harassment by ruling parties, would fundamentally alter the calculus of defection. A legislator contemplating a switch would have to weigh not merely the Speaker’s likely indulgence or the party’s ability to engineer a merger, but the concrete possibility that her own constituents could unseat her for betraying the mandate. The recall would not need to be easy to trigger. A high threshold of signatures, a mandatory cooling-off period, and supervision by the judiciary rather than the executive would prevent frivolous attempts but its mere existence would reintroduce the voter into a process from which the Tenth Schedule has, paradoxically, excluded them entirely.
The second structural reform, without which any amendment to the Tenth Schedule will remain cosmetic, is the statutory regulation of intra-party democracy. Indian political parties are, with rare and partial exceptions, autocracies. Decisions about candidate selection, whip issuance, alliance formation, and merger are taken by a small coterie at the top, often by a single leader whose authority within the party is unquestioned. The Tenth Schedule, by making disqualification contingent on obedience to the whip, effectively constitutionalises this autocracy. It converts the internal hierarchy of a private political organisation into a binding legal obligation on a public constitutional office-holder. If we are serious about the deliberative function of the legislature, we must first be serious about the deliberative function within parties themselves. A law mandating regular internal elections, transparent candidate selection processes, and a formal mechanism by which legislators can dissent from the whip without facing expulsion, a kind of intra-party conscience vote, would do more to restore the dignity of the individual legislator than any tinkering with the schedule’s merger arithmetic.
None of these reforms will emerge from the political class voluntarily. The irony of the Tenth Schedule is that any amendment to it must pass through the very legislature whose members benefit from its weakness. This is not a counsel of despair but a recognition that constitutional reform in India has always required pressure from outside the legislature, from the judiciary, from civil society, from the press, and from the slow but real force of public opinion. The Right to Information Act did not emerge because politicians wanted transparency; it emerged because citizens demanded it. The reform of the Tenth Schedule, if it comes, will follow a similar path.
A final word on what we owe ourselves
There is a temptation, when confronted with the scale of institutional decay, to conclude that the system is beyond repair and that the only rational response is cynicism. This temptation must be resisted, not because the system is working (it manifestly is not) but because cynicism is itself a form of complicity. Every time we shrug at a mass defection, every time we treat the engineering of a merger as just another episode of Indian politics, we normalise the very evil the Tenth Schedule was written to combat. The twenty Trinamool MPs who crossed over did not act in a vacuum. They acted in a political culture that has, over decades, made such crossings routine, predictable, and consequence-free. Changing that culture requires better laws, a more demanding electorate, and one that treats a defection not as a fait accompli but as a breach of trust serious enough to end a political career.
The Tenth Schedule’s purpose remains legitimate. However, a law that was designed to protect democracy has, through its design flaws, its capture by partisan Speakers, and its inability to engage with the economic and structural realities of Indian politics, become a tool for its subversion. The fix, if it comes at all, will come from a combination of institutional redesign, deepening of democratic values, and most importantly, a refusal by citizens to accept the corruption of their mandate.
(The author is part of the legal research team of the organisation)
Related:
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Smoke & Mirrors, 130th Constitution Amendment Bill: Real issue is the trading of MLAs
Liberty, Evidence and Cooperation: A legal analysis of Jugraj v. State of Punjab