Speaking at a talk in Kochi, Kapil Sibal argued that treating the merger of a legislature party as sufficient, without any merger of the original political party, allows the exception in the Tenth Schedule to swallow the rule. He is himself a petitioner in the matter now pending before the Supreme Court, which has issued notice but has not ruled.
Kochi: Senior Advocate and Independent Rajya Sabha MP Kapil Sibal has questioned why the Supreme Court has not decided the correctness of a 2022 judgment of the Bombay High Court’s Goa Bench on the merger exception under the Tenth Schedule to the Constitution, contending that recognising the merger of a legislature party without any merger of the original political party would lead to mischief.
Sibal was speaking at a talk on ‘Horse Trade and Democracy’ organised by the All India Lawyers Union in Kochi. His remarks were made from a public platform and are his own views. The underlying constitutional question is presently sub judice before the Supreme Court, which has issued notice but has expressed no concluded opinion.
What the merger exception says
The Tenth Schedule was inserted by the Constitution (Fifty-second Amendment) Act, 1985 and disqualifies a legislator who voluntarily gives up membership of his party or votes against its whip. Paragraph 4 carves out an exception where a member’s original political party merges with another political party. Sub-paragraph (2) provides that such a merger shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to the merger.
The interpretive dispute turns on how those two sub-paragraphs relate to each other. On one reading, sub-paragraph (2) merely prescribes the threshold at which a merger of the political party is treated as established, leaving intact the requirement in sub-paragraph (1) that the original political party must itself merge. On the competing reading, adopted by the Goa Bench, the agreement of two-thirds of the legislature party is by itself sufficient to attract the exception.
That judgment arose from the defection of ten of fifteen Congress MLAs in Goa to the BJP, and held that they had not incurred disqualification because the two-thirds threshold was met. It is worth noting that Parliament deleted the separate exception for a one-third “split” through the Ninety-first Amendment in 2003, leaving the merger route as the only surviving escape from disqualification.
Sibal’s criticism
Sibal said the constitutional question had remained undecided since 2022 notwithstanding its implications for parliamentary democracy:
“I wonder why since 2022, the Supreme Court has not taken up this matter? If you don’t decide a vital constitutional issue that impacts the future of our democracy, then we will have to ask the question: why did you not decide? What’s the reason?”
On the substance, he argued that treating the merger of a legislature party as sufficient would allow the exception to swallow the rule, and that the provision, intended to protect genuine political realignment, had instead become an instrument for wholesale defections.
“The Tenth Schedule then becomes a statute that punishes the lonely defector and rewards the organised one.”
He said the answer lay in correcting the provision rather than abandoning it, whether through judicial interpretation or legislative amendment.
“The Tenth Schedule does not need to be discarded. It must mean what it was enacted to mean. Para 4 should be read and, if necessary, amended so that merger is a merger of political parties, not a collective walkout by legislators.”
Sibal pointed to instances in which the Goa precedent has since been invoked, including seven Aam Aadmi Party Rajya Sabha MPs joining the BJP, and six Shiv Sena (UBT) MPs joining the Eknath Shinde-led Shiv Sena in June 2026, a move the Speaker recognised as a merger. Legislators from the Trinamool Congress have also taken the merger route in recent months.
He described horse-trading as the organised purchase of elected representatives, such that a majority manufactured after an election replaces the majority chosen by voters, and said inducements could include cash, ministerial office or protection from investigation. These are his characterisations and were not directed at any named individual.
Citing the report of the Committee on Defections set up after a 1967 Lok Sabha resolution, he noted that it had recorded 542 defections, roughly eighty per cent of them in the twelve months after March 1967, with 116 defectors subsequently given ministerial office.
What happened when the question reached the Court
The procedural history supplies important context for the criticism, and complicates it somewhat.
The Special Leave Petition filed in 2022 against the Goa Bench judgment was closed as infructuous because the term of the relevant Goa Assembly had ended, which is a procedural outcome rather than a refusal to engage with the question. A fresh round followed the 2022 Goa Assembly elections when eight of eleven Congress MLAs joined the BJP, a move upheld by the High Court in 2025, and the challenge to that decision is pending before the Supreme Court.
Sibal himself filed a petition under Article 32 on July 20, 2026, appearing as a party-in-person, seeking an authoritative interpretation of Paragraph 4. He has clarified that the petition does not challenge the validity of the Tenth Schedule, which the Supreme Court upheld in Kihoto Hollohan v. Zachillhu in 1992, but only the narrower reading of the merger provision.
On July 27, 2026, a Bench of Justice P.S. Narasimha and Justice Alok Aradhe issued notice to the Union Government and tagged the matter with the pending Goa case. The Bench acknowledged that there were significant issues with the working of the Tenth Schedule. It also, however, questioned at the outset why the extraordinary jurisdiction under Article 32 had been invoked directly, and observed that the Tenth Schedule was enacted by Parliament for legislators and that devising a mechanism was a matter for Parliament, with such disputes ordinarily arising on the floor of the House or within the political party.
Referring to the notice, Sibal said at the Kochi event:
“First time I have filed a petition myself. A bench of Justices Narasimha and Aradhe issued notice and observed that there are enormous issues with the Tenth Schedule. That observation is an understatement.”
On Speakers and an independent tribunal
Sibal also questioned the impartiality of Speakers in deciding disqualification petitions, saying that a Speaker in India remains aligned to the party that elected him and that his objectivity would always be open to doubt. He called for an independent tribunal to decide disqualification matters, with prescribed timelines.
That suggestion is not new to the debate. In Kihoto Hollohan, the Supreme Court upheld the Tenth Schedule while holding the Speaker’s decision amenable to judicial review, and a minority view in that case doubted the suitability of the Speaker as the adjudicating authority. The Court has since, in other matters, urged Speakers to decide disqualification petitions within a reasonable period, and has more than once recommended that Parliament consider an independent mechanism.
Sibal separately warned that defections could alter numbers in the Lok Sabha, referring to what he called a “special majority zone” and to a figure of 362 seats at which, in his view, the Constitution’s basic features could be altered. That is a political projection rather than a legal proposition, and the doctrine of basic structure laid down in Kesavananda Bharati operates as a judicial limit on amending power regardless of the arithmetic in the House.
Why it matters
Strip away the rhetoric and a narrow, genuinely difficult question of construction remains. The merger exception is the only route out of disqualification left standing after 2003, and everything therefore turns on whether Paragraph 4(2) is a rule of proof attached to Paragraph 4(1) or an independent gateway. The text is capable of bearing both readings, which is why the point has produced litigation across States rather than settling itself.
What makes the question urgent rather than academic is that the consequence of the wider reading is structural. If two-thirds of a legislature party can carry themselves across without the party organisation moving at all, then the composition of a House can shift between elections in a way the electorate never authorised. If the narrower reading prevails, a body of decisions recognising mergers, and the legislative arithmetic resting on them, would come under question.
Readers should also weigh the source. Sibal is not a detached commentator on this question. He is the petitioner in one of the matters in which it will be decided, he sits in the Rajya Sabha, and he has appeared for the Shiv Sena (UBT) in related proceedings. None of that makes his argument wrong, and the Bench’s own remark about enormous issues suggests the concern is not confined to him. It does mean the speech is advocacy delivered outside the courtroom, and the Supreme Court has yet to decide anything.
Speaker: Senior Advocate Kapil Sibal, Independent Member of the Rajya Sabha
Occasion: Talk on ‘Horse Trade and Democracy’, organised by the All India Lawyers Union, Kochi
Date: September 13, 2026
Related proceedings: Writ petition under Article 32 filed by Kapil Sibal in person on July 20, 2026; notice issued on July 27, 2026 by a Bench of Justice P.S. Narasimha and Justice Alok Aradhe and tagged with the pending Goa matter. The petitions remain pending.