Since 1 March 1985 the Speaker Has Decided Whether an Indian Legislator Who Left Their Party Loses the Seat, a Power the Supreme Court Upheld 3 to 2 in 1992 and Now Reviews

Since 1 March 1985 an Indian legislator who voluntarily gives up the party that put them up for election, or who votes against that party’s instruction without permission, can lose their seat. That rule is the Tenth Schedule of the Constitution, and the person who first decides each case is the presiding officer of the House: the Speaker of the Lok Sabha or a state Assembly, or the Chairman of the Rajya Sabha or a state Legislative Council. On 18 February 1992 the Supreme Court upheld this arrangement by three judges to two, and held that the courts may review the presiding officer’s decision.

PRS Legislative Research, a Delhi policy group, counted the cases up to 2009 for Parliament and up to 2004 for the states. Of 88 members of Parliament complained against, 26 were disqualified. In the state legislatures, 113 of 268 were.

Why Parliament wrote the law

On 8 December 1967 the Lok Sabha unanimously asked the government to set up a committee of party representatives and constitutional experts to study legislators who change parties and cross the floor. The Committee on Defections reported on 7 January 1969, and the Supreme Court later quoted its findings in full. It had counted at least 438 defections in the twelve months after the Fourth General Election of 1967, against roughly 542 in the entire period from the First General Election to the Fourth. Of 376 independents elected, 157 joined parties. Of 210 defecting legislators in seven states, 116 became members of the Council of Ministers that their defections had helped to form.

The committee recommended that a defector be kept out of ministerial and other paid posts for a year or until re-elected, but could not agree on removing a defector from the House. A Constitution (Thirty-second Amendment) Bill introduced in the Lok Sabha on 16 May 1973 and a Forty-eighth Amendment Bill of 1979 both proposed disqualification, and both lapsed. The Bill that passed carries a Statement of Objects dated 23 January 1985, which said the “evil of political defections” had to be combated or it would undermine the foundations of democracy. Assent came on 15 February 1985, and the Supreme Court records that the Constitution (Fifty-second Amendment) Act came into force on 1 March 1985.

What gets a member disqualified

Paragraph 2 of the Schedule names the grounds, and our overview of the twelve Schedules gives the short version. What matters is who counts as belonging to a party. An elected member is deemed to belong to the party that set them up as a candidate. A member of that kind is disqualified in two situations.

The first is voluntarily giving up membership of the party. The second ground is voting or abstaining against any direction (the party’s whip) issued by the party or by a person it authorises, unless the member got permission beforehand or the party forgave the vote within fifteen days. In Kihoto Hollohan the Supreme Court described that second ground as “a variant where dissent becomes defection”: the member stays in the party and can still lose the seat.

Two smaller rules cover members who were not fielded by a party. An independent who joins a party after the election is disqualified. A nominated member is disqualified for joining a party more than six months after taking a seat. Paragraph 5 exempts the Speaker and Deputy Speaker of the Lok Sabha and the Assemblies, the Deputy Chairman of the Rajya Sabha and the Chairman and Deputy Chairman of a Legislative Council, who may give up their party on election to the office and rejoin it after leaving.

Nobody has to submit a resignation letter for the rule to apply. In Ravi S Naik v. Union of India (1994) the Supreme Court held that “voluntarily giving up membership” has a wider meaning than resigning, and that it can be inferred from a member’s conduct. In G Viswanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) it held that a member expelled by the party who then joins another party is treated as having given up the old membership. PRS summarises both rulings.

Who decides, and what the courts can review

Under paragraph 6 every question of disqualification goes to the presiding officer of the House, and “his decision shall be final”. If the question concerns the Speaker or Chairman, the House elects another member to decide it. These proceedings count as proceedings in Parliament or the state legislature, which carry the protection of Articles 122 and 212. Going further, paragraph 7 said no court has any jurisdiction over a matter connected with disqualification.

A five-judge bench heard the challenge to the whole amendment as Kihoto Hollohan v. Zachillhu. The bench announced its conclusions on 12 November 1991 and its reasons on 18 February 1992. Justices Venkatachaliah, Jayachandra Reddy and Agrawal formed the majority. They found that paragraph 7 changed the powers that Articles 136, 226 and 227 give the Supreme Court and the High Courts, and that such a change needs ratification by half the state legislatures under the proviso to Article 368(2), the same route described in our article on how the Constitution is amended. The 1985 Bill had not been ratified by the states, so paragraph 7 fell, and the majority held that it was a severable part. The rest of the Schedule stood.

The majority also held that paragraph 2 does not violate the freedom of speech, vote or conscience of legislators, and rejected the argument that the Schedule offends the basic structure of the Constitution. A Speaker deciding a case, it said, acts as a tribunal. Finality under paragraph 6 is valid, but it leaves in place review by the High Courts and the Supreme Court for violation of a constitutional mandate, mala fides (bad faith), breach of natural justice and perversity. Courts should not step in before the decision, except to stop an interim disqualification or suspension with grave and irreversible effects. Those judges called Speakers “guardians of the rights and privileges of the House” and rejected the claim that giving them this task creates a likelihood of political bias. They found it unnecessary to say whether judicial review is itself part of the basic structure, the doctrine explained in our article on the Kesavananda Bharati case.

Justices Sharma and Verma dissented. They held that the Speaker’s tenure depends on the continued support of the House majority, so the Speaker is not the independent decision-maker that fair resolution of such disputes needs, and that the entire amendment should fall.

Splits, mergers and the 91st Amendment

As passed in 1985 the Schedule had two exceptions. Paragraph 3 protected a faction that split from a party if it held at least one-third of that party’s members in the House. A second exception, in paragraph 4, protected members when their original party merged with another, and it still does: the merger counts only if not less than two-thirds of the legislature party (the party’s members in that House) agree to it.

Assent to the Constitution (Ninety-first Amendment) Act, 2003 came on 1 January 2004, and it removed paragraph 3 with effect from that date. Its Statement of Objects names three bodies that had recommended the deletion: the Dinesh Goswami Committee on electoral reforms (1990), the Law Commission’s 170th Report (1999) and the National Commission to Review the Working of the Constitution (2002).

Three limits came in the same Act. A disqualified member cannot be appointed a Minister, under Article 75(1B) for the Union and Article 164(1B) for the states, and cannot hold a paid political post under Article 361B. Each bar lasts from the date of disqualification until the member’s term would have ended, or until they are re-elected, whichever is earlier. Council size was capped too, at fifteen per cent of the Lok Sabha or of a state Assembly, under Articles 75(1A) and 164(1A). For states, the text sets a floor of twelve Ministers.

How long Speakers have taken

The Supreme Court began treating delay as something it can review in 2007. In Rajendra Singh Rana v. Swami Prasad Maurya it held that ignoring a petition for disqualification breaches the Speaker’s constitutional duty, according to PRS.

A bench of Justices Nariman, Aniruddha Bose and Ramasubramanian set the benchmark in Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, decided on 21 January 2020. Paragraph 29 says that, absent exceptional circumstances, “a period of three months from the date on which the petition is filed is the outer limit”. The Manipur Speaker was directed to decide the pending petitions within four weeks. The bench also wrote that Parliament should rethink the Speaker’s role and consider “a permanent Tribunal headed by a retired Supreme Court Judge”.

Karnataka shows a fast decision and a dispute over the penalty. Seventeen members of the Assembly stayed away from a confidence vote on 23 July 2019. Orders of 25 and 28 July disqualified them for the rest of the Assembly’s term. Two of the petitions had been filed on 16 and 20 July. A bench of Justices Ramana, Sanjiv Khanna and Krishna Murari upheld the disqualifications on 13 November 2019 and struck down the term-long bar, because the Constitution does not give the Speaker that power. The Court said disqualification relates back to the date of the act of defection, so a later resignation letter does not wipe it out. The Court listed the sanctions in Articles 75(1B), 164(1B) and 361B as the consequences that do follow, and added that a Speaker should give a member sufficient opportunity to be heard and ordinarily follow the time limits in the legislature’s rules. It also observed that “there is a growing trend of the Speaker acting against the constitutional duty of being neutral.”

Telangana is the latest case with dates. On 31 July 2025 a two-judge bench headed by the Chief Justice of India ruled in Padi Kaushik Reddy v. State of Telangana, a matter that began with petitions the Supreme Court Observer dates between 18 March and 8 April 2024. For more than seven months the Speaker had issued no notices. The bench held that a Speaker deciding a disqualification petition has no constitutional immunity under Articles 122 or 212, and directed that the proceedings against ten members be decided within three months. The bench added that it is for Parliament to take a call on whether the Speaker-based mechanism serves the purpose of combating defection.

Decisions came later than that deadline. By 6 February 2026 the Court had given the Speaker three more weeks and warned that contempt orders would follow, with seven petitions then decided and three pending, according to LiveLaw. On 11 March 2026 the Speaker dismissed the last two, finding, as The South First reports, “no conclusive documentary or legally sustainable evidence” that the members had voluntarily given up their party’s membership. All ten petitions had been dismissed, and the same report notes that the petitioning party can still challenge the rulings in court.

What is still open

PRS’s 2009 note sets out both sides. In its table the arguments for the law are stable governments and party discipline, and the arguments against are that it curbs dissent and reduces the accountability of the government to Parliament. The note also lists proposals from the Goswami Committee, the Law Commission and the Constitution Review Commission of 2002, among them that the President or Governor decide Tenth Schedule cases on the advice of the Election Commission. In 2020 the Supreme Court suggested a permanent tribunal, and in 2025 it said whether the Speaker should keep the task is for Parliament to decide.

A second open question is the merger rule. Sub-paragraph (1) of paragraph 4 protects members when their original political party merges with another, and sub-paragraph (2) says that merger is deemed to have taken place “if, and only if” two-thirds of the legislature party agree. On 24 February 2022 a Division Bench of the Bombay High Court at Goa read the two sub-paragraphs as separate. The court held that two-thirds of a legislature party is enough to protect members, even without a merger of the party outside the House, and dismissed petitions against twelve Goa Assembly members. Petitioners there had argued for a “twin test” under which the original party must also merge. In the High Court’s view, once Parliament had set the two-thirds threshold, the courts had only that threshold to go by.

On 23 July 2026 the Supreme Court agreed to examine a challenge from Goa to the Speaker’s refusal to disqualify eight members who joined another party in 2022. A bench headed by the Chief Justice of India asked whether the High Courts disagree and directed that the plea be heard finally by a three-judge bench.