Interpretation of the 10th Schedule | Petition Summary

Merger of Shiv–Sena UBT legislators with Eknath Shinde-led Shiv Sena

Judges: P.S. Narasimha J, Alok Aradhe J

Debjani M | 14th Aug 2026

On 20 July 2026, Senior Advocate Kapil Sibal filed a Public Interest Litigation petition under Article 32 seeking an authoritative interpretation of Paragraph 4 under the Tenth Schedule to the Constitution. The petition contends that a narrow interpretation of the anti-defection provisions lead to unprincipled mass defection and horse-trading, causing irreparable damage to parliamentary democracy. 

On 27 July 2026, the Bench of Justices P.S. Narasimha and Alok Aradhe issued notice on the matter and granted the petitioner permission to appear and argue-in-person. 

Factual Matrix 

The petition came days after Lok Sabha Speaker Om Birla approved the “merger” of six Members of Parliament (MPs) from the Shiv Sena Uddhav Thackeray (UBT)-faction to the Ekhanth Shinde-faction. Shiv Sena UBT’s strength in the Lok Sabha reduced to three, while the Shinde faction’s strength increased to 13. Earlier, on 14 June, 20 MPs from All Indian Trinamool Congress (AITC) met the Lok Sabha Speaker Om Birla about their decision to merge with Nationalist Citizen Party of India—a little known regional party. 

Both parties took refuge in Paragraph 4 of the Tenth Schedule—an exception that shields party mergers from the disqualification under the anti-defection laws under the Tenth Schedule. The provision exempts disqualification of members for defection, given that 2/3rd members of the “original political party” agree to merge with another party. 

In both cases, 2/3rd members of the legislative party sought merger with the members of the opposing legislative party, claiming the merger valid under Paragraph 4 of the Tenth Schedule. The Speaker of Lok Sabha, Om Birla, deemed the merger valid under Paragraph 4(2) of the Tenth Schedule, increasing the strength of the rival Eknath Shinde-led Shiv Sena coalition to 13 members. 

Kapil Sibal’s PIL was filed two days before Arvind Ganpat Sawant, a leader of the Shiv-Sena (UBT) filed a similar challenge, contesting the merger of parties by the Speaker under the Tenth Schedule. 

Sibal clarifies that the petition does not seek to challenge the validity of the Tenth Schedule, which was upheld by the Supreme Court in Kihoto Hollohan v. Zachillhu (1992). It only seeks to challenge the narrow interpretation of Paragraph 4 of the Tenth Schedule as contrary to the Basic Structure of the Constitution.

Key Issues

  • Whether a “merger” under Paragraph 4(2) of the Tenth Schedule can be deemed merely because 2/3rd of the original legislative party intends to “merge” with the opposing legislative party
  • Whether such “merger”of legislative parties is valid in the absence of the merger between the original political parties
  • Whether the Speaker is authorised to declare a “merger” valid in the absence of an inquiry by the Election Commission

Who are the parties? 

The petitioner, Senior Advocate Kapil Sibal has filed the PIL against the Union of India, through the Department of Law and Justice. Sibal prayed that the matter be tagged with similar petitions challenging Paragraph 4 of the Tenth Schedule. 

What does the Tenth Schedule provide? 

The Tenth Schedule was inserted into the Constitution through the 52nd Amendment in 1985. It was aimed at providing measures for disqualification of legislators shifting parties or allegiances. 

Paragraph 2 of the Tenth Schedule of the Constitution concerns disqualification of members of either House of Parliament or the Legislative Assembly if:

  1. The member has voluntarily given up his membership of such political party 
  2. The member votes or abstains from voting in such House contrary to any direction issued by the political party without the prior authorisation or condonation of the party

Paragraph 4 of the Schedule provides an exception to the rule of disqualification. It provides that the member of the party shall not be disqualified where: 

  1. Where 2/3rd of total legislative members of the original political party have become members of the other political party by the way of a merger 
  2. The members of the original political party have opted to function as a separate group 

Before the 91st Amendment in 2003, members exiting political parties in a party split would be exempted from disqualification under the anti-defection law. The split exemption was removed via the 2003 Amendment after it was widely abused. The “merger” exception remained, which is now commonly observed to be changing the composition of the Parliament or State Legislative Assemblies. 

Sibal highlights this contradiction under the Tenth Schedule, arguing that while a split on party lines attracts defection under the Tenth Schedule, switching between parties—often as a part of political horse-trading—is extended protection under the Schedule. 

What does the Petition contend? 

Sibal submits that the provisions of Paragraph 4 cannot be liberally read. His petition argues that for a merger to be declared valid, the following three ingredients must be fulfilled: 

  1. A political party (alongside the legislative party and other party members) merging with another party 
  2. The members facing disqualification becoming the member of a new party/ refusing such merger to remain part of a separate group, and 
  3. At least, 2/3rd member of the legislative party agreeing to a merger

It notes that the language of Paragraph 4 requires that the original political party (not legislative party) must merge with another party as a precondition to a valid merger.  

The petitioner argues that the merger is not validated merely because 2/3rd members of the legislative party intend to join another party. Referring to Kihoto Hollohon, Sibal argues that a genuine split or merger owing to ideological dissent must not attract the defection provisions under the Tenth Schedule. However, it cannot be said that mere switching between political parties amounts to a genuine ideological dissent. 

Further, the petition contends that the authority of the Speaker is limited to the issue of disqualification of members. He cannot determine or sanction mergers between political parties—the only authority capable of doing so is the Election Commission of India (ECI) under Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968. 

The Speaker can approve the same under the anti-defection law after the ECI determines the fact of merger through an inquiry. He argues that Paragraph 4(2) cannot be interpreted to conclude that where 2/3rd of the legislative majority agrees, the parties shall be “deemed” to be merged. 

The petition states that the merger-exception under the Tenth Schedule, alongside the misuse of the Speaker’s powers “serves to further entrench ruling parties, and further denude opposition”. 

Prayer 

The Petition prays for a writ of mandamus, seeking the declaration that: 

  1. The merger exception to anti-defection law applies only when one political (not legislative) party merges without another political party 
  2. Contrary to the plain language of Paragraph 4(1) and (2), a deemed merger of legislative parties, in the absence of the merger of political parties, be declared to be against the Basic Structure of the Constitution
  3. A 2/3rd legislative majority in favour of merger is not sufficient to constitute a deemed merger
  4. If such a deemed merger is allowed under Paragraph 4(2), it shall be against the fundamental principles underlying representative democracy
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