Tenth Schedule and Party Mergers

About Tenth Schedule and Party Mergers

• The Tenth Schedule was inserted by the 52nd Constitutional Amendment Act, 1985 to prevent political defections and ensure stability in the parliamentary system.
  • It provides for disqualification of legislators who voluntarily give up party membership or defy the party whip.
• Merger Exception under the Tenth Schedule: Paragraph 4 of the Tenth Schedule contains the merger provision.
  • It allows legislators to retain their membership of the House when a valid party merger takes place.
• Conditions for Protection under the Merger Clause:
  • Two-Thirds Support Requirement: Protection is available only when not less than two-thirds of the members of the legislature party agree to the merger.
  • Original Political Party and Legislature Party: The Tenth Schedule distinguishes between the original political party, which sponsors candidates for elections, and the legislature party, which consists of its members in a House.
    • This distinction is important because disputes over mergers often involve the relationship between these two entities.
  • Protection to Both Groups: Members who accept the merger and those who refuse it but function as a separate group are protected from disqualification.
  • Only Available Exception: The 91st Constitutional Amendment Act, 2003 removed the earlier split provision.
    • As a result, merger under Paragraph 4 remains the only exception to disqualification under the Tenth Schedule.
• Interpretational Debate: A key issue is whether support from at least two-thirds of the legislature party is sufficient to claim the merger exception, or whether the original political party must also formally merge with another political party.
• Key Amendments :
  • 52nd Constitutional Amendment Act, 1985: Inserted the Tenth Schedule into the Constitution.
  • 91st Constitutional Amendment Act, 2003: Deleted the Paragraph 3 split provision and retained only the merger provision under Paragraph 4.
• Important Judicial Pronouncements:
  • Kihoto Hollohan v. Zachillhu (1992): The Supreme Court upheld the constitutional validity of the Tenth Schedule and held that the Speaker’s decision is subject to judicial review on limited grounds.
  • Ravi S. Naik v. Union of India (1994): The Supreme Court held that a member may be considered to have voluntarily given up party membership even without a formal resignation if such intention is evident from the member’s conduct.
  • Subhash Desai Case (2023): The Supreme Court held that the political party and the legislature party are distinct entities.
    • The Court also held that the power to appoint the whip and leader belongs to the political party and not merely to the faction that commands a majority in the House.
• Deciding Authority: The Speaker or Chairman of the concerned House decides whether a legislator should be disqualified under the Tenth Schedule and whether a claimed merger qualifies for protection from disqualification.
• Judicial Review: The Speaker’s decision can be reviewed by courts on limited grounds such as mala fide action, violation of natural justice, procedural irregularity, or error of law.
  • Courts generally do not intervene before the Speaker has given a decision.