Anti-Defection Law Gives Speakers the First Decision; Two-Thirds Mergers Are Exempt
The Tenth Schedule defines defection, sets a two-thirds merger exception and gives presiding officers the first decision, which courts can review.
India's anti-defection law, set out in the Tenth Schedule of the Constitution, decides when a member of Parliament or a state legislature loses their seat for switching parties. The rules are the same in principle for both, though the presiding officer differs by House. The presiding officer makes the first decision, and the Supreme Court has since ruled on how quickly and how far that decision can be reviewed.
Recent cases in the Lok Sabha and the Telangana Assembly show how these rules work in practice. The sections below cover what counts as defection, how the law was tightened, the two-thirds merger exception, the Speaker's role, the courts' power of review, and recent decisions by presiding officers.
What Counts as Defection Under the Tenth Schedule
Paragraph 2 of the Tenth Schedule disqualifies a member who belongs to a political party if they voluntarily give up that membership. It also disqualifies a member who votes or abstains in the House contrary to a direction from their party, unless the party has given prior permission or condones the act within 15 days of the vote or abstention. A disqualified member cannot remain a member of that House.
PRS Legislative Research describes defection as voluntarily giving up allegiance to the party on whose symbol a legislator was elected. The voting ground covers votes and abstentions in the House.
The 1967 Defections and the 2003 Amendment
The rules were shaped by defections after the 1967 elections. PRS Legislative Research records that Congress lost seven state governments to defections in that period, and that 210 legislators defected across seven states, of whom 116 later received ministerial posts.
The 2003 amendment deleted the provision that protected a split in which one-third of a legislature party broke away. PRS quotes a committee headed by Pranab Mukherjee as saying the provision of split had been 'grossly misused to engineer multiple divisions in the party'.
The same amendment also implemented a 1967 committee recommendation led by Y.B. Chavan, under which a defecting legislator cannot join the Council of Ministers until re-elected.
The Two-Thirds Merger Exception
Paragraph 4 is an exception to disqualification. A member is protected when their original party merges with another party and they claim to have become members of that party. A merger counts only if not less than two-thirds of the members of the legislature party concerned have agreed to it.
The count covers the legislators of that party in the House or assembly concerned, which the text calls the legislature party.
Because the exception requires two-thirds, a single legislator who moves alone cannot rely on it. The 2003 amendment removed only the one-third split route, leaving the two-thirds merger route in place.
Whether the two-thirds test is met is put to the presiding officer. The Lok Sabha case below shows this, with the Speaker reviewing a merger request from the MPs concerned.
The Speaker's Role and the Deadline for Decisions
Under paragraph 6, a question about whether a member has become subject to disqualification goes to the Speaker of the Lok Sabha or a state assembly, or to the Chairman of the Rajya Sabha or a state legislative council. The text says that decision 'shall be final'.
PRS describes the presiding officer as the sole arbiter of defection proceedings. The law sets no time limit for a decision, which PRS notes allows both quick rulings and long delays. The Supreme Court has since said the Speaker must decide within a reasonable time, as the next section explains.
Paragraph 5 gives presiding officers a separate exemption. A Speaker, Deputy Speaker or council chairman who gives up party membership on election to the office, and does not rejoin during their tenure, is not treated as having voluntarily given up party membership. The exemption applies to the person holding the office, not to the party's other members.
The disqualification questions described below reached the presiding officers through petitions filed by BRS MLAs in Telangana and by TMC leader Abhishek Banerjee in the Lok Sabha.
The bench held that a Speaker acting under paragraph 6 does not enjoy constitutional immunity under Articles 122 or 212.
When Courts Can Review a Speaker's Decision
On 31 July 2025, a bench of Chief Justice B.R. Gavai and Justice A.G. Masih decided Padi Kaushik Reddy v The State of Telangana. The bench held that a Speaker acting under paragraph 6 does not enjoy constitutional immunity under Articles 122 or 212. It also held that the Speaker functions as a tribunal in these matters.
The bench rejected the argument that courts could not intervene before the Speaker decided. It held that petitioners can seek judicial review to compel a prompt decision, and that a Speaker's inaction is not protected by paragraph 6.
The petitions were brought by BRS leaders, including K.T. Rama Rao, against legislators who had moved to the ruling Congress. In the Telangana case, the court directed the Speaker to decide the disqualification petitions within three months. It noted that the Speaker had not issued notice for nearly seven months, which it said could not be treated as expeditious action. The High Court's Division Bench had set aside a single judge's direction to fix a hearing schedule within four weeks and said the Speaker must decide within a reasonable time.
PRS also notes that the Supreme Court has held that a Speaker's decisions remain subject to judicial review.
The court also urged Parliament to reconsider whether giving Speakers the power to decide disqualification is an effective way to address defections.
Current Cases in the Lok Sabha and Telangana
On 25 August 2026, Lok Sabha Speaker Om Birla issued notices to 20 Trinamool Congress MPs, asking for replies within seven days. The disqualification petitions were filed by TMC leader Abhishek Banerjee. The party says the MPs abandoned it after entering the Lok Sabha on its ticket and aligned with the National Citizens Party of India.
The MPs have been given separate seating in the House, but remain officially TMC members while the Speaker reviews their request to merge with the National Citizens Party of India. Under paragraph 4, a merger counts only if not less than two-thirds of the legislature party agreed to it.
During a Supreme Court hearing on Abhishek Banerjee's writ petitions, Justice Joymalya Bagchi said the question was not one of issuing notices but of concluding the proceedings within a time frame.
In Telangana, Speaker Gaddam Prasad Kumar dismissed disqualification petitions against two BRS MLAs, Danam Nagender and Kadiam Srihari, on 11 March 2026. Both were among the ten BRS MLAs at the centre of the Supreme Court case, and the dismissal came after the three-month period set in July 2025 had run. The Speaker told PTI that the petitions had been dismissed, according to ThePrint.
BRS working president K.T. Rama Rao called the decision an assault on democracy. Rama Rao also pointed out that Nagender had contested the 2024 Lok Sabha election on a Congress ticket, saying that giving such a person a clean chit was an insult to people's verdict.
The Lok Sabha notice, dated 25 August 2026, sought replies within seven days, a period that ended around 1 September 2026. The Speaker has dismissed the two Telangana petitions named above.
