The Tenth Schedule of the Constitution was inserted by the Fifty-Second Constitution Amendment Act, 1985, which came into force on 1 March 1985. Its purpose was specific and widely shared: to prevent members of Parliament and State Legislatures from switching parties for personal gain, thereby destabilising governments and corrupting democratic representation. The problem it addressed, the phenomenon popularly described as 'aaya ram gaya ram' after a Haryana legislator who defected three times in a single day in 1967, was real, visible, and damaging to public trust in representative institutions. Forty years on, the Tenth Schedule is invoked with increasing frequency, but the behaviour it is now most reliably used to produce is not the prevention of defection. It is the consolidation of ruling party control over legislative assemblies.
The juridical architecture of the Tenth Schedule concentrates enormous power in the Speaker of the House. Under Paragraph 6, the Speaker is the sole authority to decide disqualification petitions. The Speaker's decision is not subject to ordinary judicial review during its making, courts have held that the Speaker acts as a tribunal and that High Courts lack jurisdiction to intervene in pending proceedings. This design assumed that the Speaker would function as a constitutional officer independent of partisan affiliation. That assumption has been repeatedly falsified. Speakers are elected by the ruling party, depend on it for their position, and are almost invariably found to have decided disqualification petitions in ways that serve the governing coalition's interests rather than the Constitution's purposes.
The Supreme Court attempted to address this structural problem partially in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh (2016), holding that a Speaker cannot decide disqualification petitions while a notice of removal against the Speaker is pending under Article 179(c). The logic was that a Speaker facing removal lacks the independence necessary for adjudication. The ruling was celebrated as a check on partisan Speakers but quickly became a weapon for the opposing side: any faction seeking to delay disqualification proceedings could simply move a notice of removal against the Speaker, thereby triggering the Nabam Rebia bar and paralysing the Tenth Schedule proceedings. A rule designed to protect impartiality was converted into a filibuster device. The Supreme Court later referred Nabam Rebia to a larger bench for reconsideration, acknowledging its unintended consequences, but no larger bench ruling has yet been delivered.
The Maharashtra Shiv Sena split of June 2022 exposed the full incoherence of the current framework. When a faction led by Eknath Shinde, commanding the allegiance of 37 of 55 Shiv Sena MLAs, broke with the party leadership and supported a change of government, the rival faction filed disqualification petitions. The incumbent Speaker, aligned with the Shinde faction, recognised that faction's whip appointment as valid, effectively accepting the Shinde group's claim to be the legitimate party for the purposes of the Tenth Schedule. In the Supreme Court's subsequent ruling in Subhash Desai v. Principal Secretary (2023), a Constitution Bench found that the Speaker's recognition of the rival whip was a decision that had to be made through constitutionally correct procedures, but stopped short of restoring the original government. The Court held that it could not undo a floor test that had already been conducted and a government that had since been constituted. The legal edifice remained standing; the constitutional wrong went unrepaired.
The Maharashtra experience is particularly revealing because the Shinde rebellion did not involve defection in the traditional sense. No MLA crossed the floor to join a different party. The entire drama was one of internal party conflict in which a majority of the legislature party claimed to be the authentic political party and sought recognition on that basis. The Tenth Schedule does not squarely address internal party splits of this character. Its Paragraph 4, which originally permitted mergers approved by two-thirds of the legislature party, provides partial guidance but does not resolve who determines which faction constitutes the legitimate political party for the purposes of applying the schedule. The Election Commission now plays a decisive role in recognising party factions and allotting symbols, but its decisions interact with the Speaker's disqualification jurisdiction in ways that the constitutional text does not resolve.
The deeper problem is structural. The Tenth Schedule vests adjudicative power in a partisan officer, provides no independent tribunal as an alternative, generates long delays in proceedings, and offers no effective remedy for final decisions reached after governments have changed and legislatures have been dissolved. In Kihoto Hollohan v. Zachillhu (1992), a Constitution Bench upheld the Tenth Schedule as constitutionally valid but read in a judicial review requirement: Speaker decisions are subject to review on limited grounds including constitutional infirmity and perversity. That review has proven insufficient in practice because courts, out of institutional deference to the separation of powers, are reluctant to second-guess Speakers in ways that would effectively transfer partisan political decisions into judicial chambers.
What reform requires is the replacement of the Speaker as adjudicator with an independent constitutional tribunal. The Law Commission of India, in its 170th Report, recommended this change in 1999. The National Commission to Review the Working of the Constitution similarly recommended in 2002 that disqualification petitions should be decided by the President or Governor on the advice of the Election Commission, rather than by the Speaker. These recommendations have not been implemented. The political class has no incentive to implement them because the current framework consistently benefits whichever party controls the Speakership at any given moment.
The Tenth Schedule as currently designed has not eliminated defection. It has not stabilised governments. What it has done is transfer the power to determine which legislators may continue to sit in a House from the courts to the Speaker, where it is exercised according to the calculations of majority consolidation rather than the principles of constitutional democracy. At forty, the anti-defection law is not a cure that has failed. It is a cure that has become the disease.