Supreme Court's Tenth Schedule Docket Set to Test Whether Speakers Can Remain Arbiters of Defection

Supreme Court will hear Kapil Sibal's plea on July 27 challenging the interpretation of the Tenth Schedule's merger exception, alongside the parallel Shiv Sena (UBT) merger challenge heard the same day. The pairing revives the Kihoto Hollohan (1992) question of whether Speakers can remain sole arbiters of defection disputes, with tagging for a larger bench the likelier near-term outcome over a ruling on merits.

By Mahima Katal

New Delhi, July 22: The Supreme Court's decision on Wednesday to list senior advocate Kapil Sibal's plea for hearing on July 27 does more than add one more matter to an already crowded anti-defection docket. It positions the Court, whether by design or accumulation, to confront a question it has sidestepped since 1992: whether a Presiding Officer, whose tenure and political fortunes are tied to the House majority, can continue to function as the sole first-instance adjudicator of defection disputes under the Tenth Schedule.

Sibal, appearing before a bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana, sought urgent listing of a petition he has filed in his personal capacity as an Independent Rajya Sabha MP. His submission was narrow in form but expansive in implication: whether the composition of Parliament can be permitted to change in the manner currently occurring in the country, and how paragraph four of the Tenth Schedule ought to be interpreted in that context. The CJI, taking note of the submissions, agreed to list the matter for July 27, a Monday.

Paragraph four of the Tenth Schedule is the merger exception. Where the general scheme of the Schedule disqualifies a legislator who voluntarily gives up membership of the party on whose ticket they were elected, or who votes against a party whip, paragraph four exempts members from disqualification where their original political party has undergone a merger with another party, provided not less than two-thirds of the members of the legislature party concerned have agreed to the merger. The provision was designed to distinguish a genuine, negotiated merger of political parties from an engineered defection dressed up as one. Sibal's petition, on the facts recited before the Court, concerns whether that distinction is currently being observed at all, or whether paragraph four has become a mechanism through which breakaway factions retroactively manufacture the appearance of a merger to escape the primary disqualification provisions of paragraphs two and three.

The timing of Sibal's plea is not incidental. The same day it was mentioned, a separate petition filed by Shiv Sena (UBT) challenging the Lok Sabha Speaker's approval of the merger of a section of its MPs with the Shinde faction was listed before a bench headed by Justice P S Narasimha. Sibal specifically drew the CJI's attention to the pendency of that matter, and to other similar pleas already before the Court. Taken together, the docket now includes challenges arising from defections and mergers involving AAP, Trinamool Congress, and Shiv Sena (UBT) MPs joining the ruling BJP and allied parties. The recurrence of the same underlying grievance, filed by different parties across different Houses and legislatures, is itself a data point: it suggests the paragraph four merger exception is being invoked with a frequency and a procedural pattern that outstrips its intended, narrow use.

This is where the constitutional design problem resurfaces. The Tenth Schedule, in paragraph six, vests the decision on whether a member has incurred disqualification in the Speaker or Chairman of the House concerned, and Explanation (c) to that paragraph clarifies that such a decision is deemed to be a proceeding in Parliament or the Legislature for the purposes of Article 122 or Article 212. The constitutional bench in Kihoto Hollohan v. Zachillhu (1992) upheld this scheme against a challenge that it violated the basic structure by placing adjudicatory power over a quasi-judicial question in the hands of a political functionary. The Court's reasoning at the time rested on the presumption that the Speaker, though a member of a political party, acts as a tribunal once seized of a disqualification petition, and that this quasi-judicial function is severable from, and does not compromise, the Speaker's ordinarily partisan role. The Court did, however, subject the Speaker's decision to judicial review on the grounds available against any tribunal, including malafides, perversity, and violation of natural justice, while confining such review to the final order rather than permitting interference at intermediate stages.

In the more than three decades since Kihoto, the Court has repeatedly encountered the friction between that presumption and how the Schedule actually operates on the ground. In Rajendra Singh Rana v. Swami Prasad Maurya (2007), the Court found that a Speaker's failure to decide a disqualification petition, while permitting the defecting members to participate in and even influence the composition of a new government, amounted to a decision vitiated by mala fides. In Nabam Rebia v. Deputy Speaker (2016), a different constitutional bench, dealing with a Speaker's power to decide disqualification petitions while a resolution for the Speaker's own removal was pending, held that the Speaker could not adjudicate such petitions during that period, precisely because impartiality could not be assumed. Most significantly, in the matter arising from the 2019 Karnataka defections and subsequently in Subhash Desai v. Governor of Maharashtra (2023), the Court expressed clear disquiet over Speakers sitting on disqualification petitions for months or years without decision, effectively allowing defecting members to alter the arithmetic of the House and even change the government while the question of their own disqualification remained undetermined. In the Maharashtra matter, the Court went so far as to observe that the Speaker had acted contrary to the constitutional scheme in recognising a faction without first deciding the disqualification petitions pending against its members, yet it declined to itself adjudicate the disqualification questions or to unseat the resulting government, citing the limits of what relief could be moulded at that remove in time.

That pattern, delay followed by a fait accompli that judicial review arrives too late to reverse, is the structural core of what Sibal's plea and the pending Shiv Sena (UBT) matter both put before the Court once more. If a Speaker can decline to decide, or can decide in a manner that favours the ruling dispensation, and if the consequence of that delay is that the composition and confidence of the House shift irreversibly before any court can intervene, the Kihoto premise that judicial review is an adequate safeguard becomes difficult to sustain in practice, whatever its theoretical soundness. The paragraph four merger exception compounds this because the threshold determination, whether two-thirds of a legislature party genuinely agreed to a merger, is itself a factual and political question that the Speaker decides in the first instance, with the same incentives and the same possibility of delay that the Court has already found problematic in straightforward disqualification cases.

What the Court does with Sibal's petition on July 27 will indicate whether it intends to use the current cluster of pending matters to revisit the design question left open since Kihoto, rather than continuing to dispose of individual defection disputes on their specific facts. The narrower course would be to decide the Shiv Sena (UBT) merger challenge and any connected matters strictly on whether the Lok Sabha Speaker's specific approval met the two-thirds threshold and complied with natural justice, leaving Kihoto's institutional framework undisturbed. The broader course, which Sibal's framing invites by asking whether the composition of Parliament itself can be permitted to change through this mechanism, would require the Court to consider whether the time has come to prescribe a different adjudicatory mechanism altogether, an independent tribunal or a fixed timeline enforceable through mandamus, rather than continuing to rely on after-the-fact review of Speaker's decisions that by the time they are reviewable have already produced irreversible political consequences. Given that a five-judge or larger bench would likely be required to revisit Kihoto's core holding, the more probable near-term outcome is that the CJI-led bench uses the July 27 hearing to decide whether these pending matters ought to be tagged together and referred to a larger bench, rather than deciding the substantive question itself. That procedural decision, on tagging and reference, is likely to be the more consequential news out of the July 27 listing than any observation on the merits.