Anti-defection law in headlines again: Why Kapil Sibal wants Supreme Court to revisit ‘merger’ flaws. explainer news

Last updated:23 July 2026, 11:24 IST

Sibal says that repeated incidents of MLAs avoiding disqualification by claiming protection under the “merger” provision have made the constitutional protections more ineffective.

India’s anti-defection law has come into focus again after senior advocate and Rajya Sabha MP Kapil Sibal approached the Supreme Court seeking clear interpretation of one of its most controversial provisions – the exception that protects legislators from disqualification in political merger cases.

Referring the matter before a bench led by Chief Justice Surya Kant, Sibal argued that the current interpretation of Paragraph 4 of the Tenth Schedule has undermined the purpose of the anti-defection law. According to him, repeated incidents of legislators evading disqualification by claiming protection under the “merger” provision have made the constitutional protection increasingly ineffective. The Supreme Court has agreed to list this case for hearing.

His plea comes at a politically crucial moment. From Maharashtra to Goa and Manipur, governments have been reshaped over the years through large-scale defections, factional divisions and legislative merger claims. The debate has now moved beyond individual defections to a larger constitutional question: Can the composition of the elected House be fundamentally changed without voters returning to the polls?

Why has Maharashtra once again become the center of debate?

The timing of Sibal’s petition is notable as speculation is once again rife over a possible political realignment in Maharashtra.

In recent weeks, discussions over a possible rapprochement between the two factions of the Nationalist Congress Party have intensified after Prime Minister Narendra Modi met Sharad Pawar at an event in Pune. The meeting, along with fresh talks on delimitations and changing political equations ahead of future elections, has triggered speculation that the NCP (Sharad Pawar) may eventually reunite with the Ajit Pawar-led NCP, which is part of the ruling Mahayuti alliance.

However, Sharad Pawar has chosen not to fuel the speculations or dismiss them outright. Instead, he has said that any decision will depend on consultation with party workers and the political situation at the time. Political observers believe that the experienced leader is deliberately keeping his options open while keeping a close eye on the developments in Maharashtra and at the national level.

Whether or not such a reunification happens, the renewed merger discussion has once again highlighted the legal complexities surrounding political realignment – ​​the very issue Sibal wants the Supreme Court to clarify.

What is anti-defection law?

The anti-defection law is included in the Tenth Schedule of the Constitution, which was introduced through the 52nd Constitutional Amendment in 1985 during the Rajiv Gandhi government.

Its purpose was to prevent elected representatives from switching political allegiances after an election in exchange for ministerial posts or other political favors – a practice that had become widespread during “theRam came, Ram went“The era of the 1960s and 1970s.

Under the law, an MP or MLA can be disqualified if:

• They voluntarily give up the membership of the political party on whose ticket they were elected;
• They vote against their party’s official whip or abstain from voting without prior permission;
• An independent member joins a political party after being elected;
• A nominated member joins a political party more than six months after entering the legislature.

The power to decide on disqualification petitions rests with the Speaker or Chairman of the House, although their decisions are subject to judicial review.

merge exception

The biggest exception to the anti-defection law is in paragraph 4 of the Tenth Schedule. There is a provision that if the parent political party of the MLAs merges with any other political party and at least two-thirds of the members of its legislative party agree to the merger, then they will not have to face disqualification.

When Parliament enacted the law, the provision was meant to accommodate genuine political reorganization and to prevent every large-scale reorganization from being treated as defection.

However, critics argue that this exception has rapidly become the law’s biggest flaw. Instead of individual MLAs moving ahead of each other, political groups now want to move together in numbers exceeding the two-thirds threshold, which would enable them to avoid disqualification as well as claim constitutional protections. Sibal’s plea argues that this interpretation effectively defeats the purpose of the anti-defection law and allows elected governments to be reshaped without fresh elections.

How have political parties used this provision

Maharashtra provides perhaps the most prominent recent example.

In 2022, Eknath Shinde led the rebellion of most of the Shiv Sena MLAs, resulting in the fall of the Uddhav Thackeray-led Maha Vikas Aghadi government. The rebels argued that they represented the legislative majority within the party, sparking a protracted legal and constitutional battle over disqualification, party symbols and organizational control.

Barely a year later, Ajit Pawar led another split, taking most of the NCP MLAs with him and joining the ruling coalition. The dispute eventually reached both the Election Commission and the courts over which faction constituted the “real” Nationalist Congress Party.

Similar political developments have emerged elsewhere also. In Goa, eight of the 11 Congress party MLAs joined the BJP in 2022, comfortably crossing the two-thirds threshold and avoiding disqualification under the merger provision.

The past decade has seen several instances of MLAs changing political affiliations through group defection in Arunachal Pradesh, while similar legal questions have been raised in Manipur when MLAs switched sides during political instability.

The debate has acquired a new national dimension after several Rajya Sabha MPs from the Aam Aadmi Party merged with the BJP earlier this year. Those who switched included Swati Maliwal, Harbhajan Singh, Ashok Kumar Mittal, Vikramjit Singh Sahni and Rajinder Gupta, significantly altering AAP’s strength in the Upper House and increasing the numbers of the BJP-led NDA. The Trinamool Congress has also seen a spate of resignations and the emergence of a rebel faction, with many former TMC leaders eventually joining the BJP.

Together, these episodes demonstrate that while anti-defection laws have made individual struggle more difficult, organized defection involving large groups remains a recurring feature of Indian politics.

What decision can the Supreme Court take?

Sibal is not asking the court to rewrite the Constitution. Instead, he wants the Supreme Court to address a key constitutional question: whether the merger provision is being interpreted in a manner that allows a legislative majority to overturn the mandate given by voters.

If the Court limits the interpretation of paragraph 4, future political realignment may face far more stringent scrutiny. If it retains the current understanding, the two-thirds passage is likely to remain the principal constitutional mechanism through which governments change without MLAs resigning or seeking a new mandate.

At a time when coalition politics and fragmented mandates have become the norm, the Supreme Court’s final decision could shape the future of India’s anti-defection regime as much as the law did four decades ago.

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