Anti-Defection Law and Resignation: CLAT Explainer

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On 25 May 2026, four AIADMK MLAs in Tamil Nadu resigned their seats, had the resignations accepted by the Speaker, and joined Chief Minister Vijay's Tamilaga Vettri Kazhagam (TVK), all on the same day. Two more later followed.

AIADMK called it horse-trading dressed up as resignation. On 26 October 2026, the Supreme Court refused to entertain a writ petition calling it a dodge of the anti-defection law. Two weeks earlier, the Madras High Court had upheld the resignations but kept the defection cases alive.

For a CLAT aspirant, this is the Tenth Schedule in action, and it turns on one question examiners love: what is the difference between resigning and defecting?

🎯 In a nutshell

The Tenth Schedule (52nd Amendment, 1985) disqualifies a sitting member who voluntarily gives up party membership or defies the whip.
Resign the seat first under Article 190(3)(b), and there is no member left to disqualify for joining a new party. The price is a by-election.
Madras High Court (13 October 2026): the resignations are valid, but resignation and disqualification are separate tracks. The Speaker must decide the pending whip-defiance cases within two months.
Supreme Court (26 October 2026): declined to entertain a writ petition against the crossover and left an FIR alleging inducement to investigators.
The 91st Amendment (2003) bars a disqualified defector from ministerial office until re-elected. A plain resignation does not trigger that bar.

📌 What CLAT actually expects

In Current Affairs, CLAT can ask general-knowledge facts linked to the news, like which amendment created the anti-defection law or what share of members must agree to a merger. In Legal Reasoning, it will hand you the anti-defection rules in the passage and test whether you can apply them exactly to new MLAs. You do not need to memorise paragraph or clause numbers.

The backstory

"Aaya Ram, Gaya Ram" goes back to Haryana in 1967, when MLA Gaya Lal changed parties three times in a day. Parliament's answer came in the 52nd Amendment Act, 1985, which added the Tenth Schedule and amended Articles 101, 102, 190 and 191. Under Article 191(2), a person disqualified under the Tenth Schedule cannot remain an MLA.

Leaving the party: a member who "voluntarily gives up" party membership is disqualified. This can be inferred from conduct, not just a formal letter (Ravi S. Naik, 1994).
Defying the whip: voting or abstaining against the party's direction without prior permission, unless the party condones it within 15 days.
Independents: an independent member who joins any party after the election is disqualified.
Nominated members: may join a party only within six months of taking their seat.
Merger: no disqualification if at least two-thirds of the legislature party agree to merge. The old one-third "split" defence was deleted in 2003.

The 91st Amendment (2003) went after the reward. Articles 75(1A)/164(1A) cap the ministry at 15% of the Lok Sabha or Assembly (minimum 12 in a state). Articles 75(1B)/164(1B) bar a member disqualified under para 2 from becoming a minister until the House's term would end or until re-election, whichever is earlier. Article 361B does the same for remunerative political posts.

📌 Notice the trigger word

Every one of these penalties is triggered by disqualification. Resigning is not disqualification. That one distinction explains most of this story.

Under para 6, the Speaker decides defection cases. Kihoto Hollohan v. Zachillhu (1992), by 3:2, upheld the Schedule but held that the Speaker acts as a tribunal whose decision courts can review, generally only after it is made. Resignation is a separate route: under Article 190(3)(b) an MLA resigns by writing to the Speaker, and the 33rd Amendment (1974) proviso says the Speaker must not accept it if satisfied it is "not voluntary or genuine".

What happened in Tamil Nadu

1
4 May 2026
TVK won 108 seats, short of the 118 needed in the 234-member Assembly, and formed the government with the support of other parties.
2
11-13 May
AIADMK whipped its MLAs to oppose the confidence motion. The government won with 144 votes; 25 AIADMK MLAs backed it.
3
14 May onwards
Tenth Schedule proceedings began. AIADMK later sought pardon for 21 of the 25, and proceedings against those who apologised were dropped.
4
25 May
Four MLAs resigned; the Speaker accepted the same day, the vacancies were gazetted, and they joined TVK. Two more later resigned and joined.
5
9 October
P. Sathyabama (Dharapuram) and K. Maragatham Kumaravel (Madurantakam) won by-elections as TVK candidates.

Madras High Court: two separate tracks

In Agri SS Krishnamurthy v. The Speaker, the AIADMK whip argued that same-day acceptance made the Article 190 inquiry a sham. The Speaker said he had questioned each MLA and found no coercion. On 13 October, Chief Justice S.A. Dharmadhikari and Justice G. Arul Murugan upheld all six resignations. But they held that resignation and disqualification are distinct constitutional processes, so the pending petitions had not become infructuous (pointless), and directed the Speaker to decide them within two months.

Supreme Court: not a case for a writ

Before CJI Surya Kant and Justices Joymalya Bagchi and V. Mohana, the petitioner argued that the Tenth Schedule had a "constitutional vacuum": legislators resign strategically and then secure berths in government. The bench dismissed the petition, observing (as Bar & Bench reported) that resigning a seat and taking ministerial office is part of the standard political process. It kept the criminal allegations separate.

Let the FIR be investigated. Law will take its course.

— Justice Joymalya Bagchi, 26 October 2026, as reported by Bar & Bench

ℹ️ What we could not confirm

In May, The News Minute reported that TVK gave no cabinet posts to AIADMK's breakaway legislators. We found no report that any of the six has since become a minister, so read the Court's remark as principle, not a fact about them.

Why the anti-defection law didn't bite

It disqualifies members, not ex-members. The law speaks of a "member of a House". Once the seat is vacant, joining TVK is not a fresh defection.
Motive is off-limits. In Shrimanth Balasaheb Patil (2019), the Karnataka MLAs' case, the Supreme Court said "genuine" means authentic and "voluntary" means free of coercion. If both are met, the Speaker must accept.
The ministerial bar needs a disqualification. Article 164(1B) does not touch a plain resignation, and it ends on re-election anyway. Article 164(4) lets anyone be a minister for six consecutive months before winning a seat.
The earlier act can still bite. The 13 May whip defiance came before the resignations. Shrimanth held that resignation does not erase a completed defection and that disqualification relates back to the act. If the Speaker disqualifies these members, Articles 164(1B) and 361B apply from then, though for the two by-election winners that bar would already have ended. Shrimanth also held that a Speaker cannot bar a disqualified member from contesting till the term ends.

So resignation is not a magic eraser. It is an exit with a toll: lose the seat, face the voters, and stay answerable for what you did before leaving.

The debate

Question	Legitimate choice	Loophole
Is resign-and-rejoin fair?	Kihoto said the Schedule's premise is that a member who changes parties should give up the seat and seek a fresh mandate. That is what happened here.	Same-day resignation, acceptance and joining, plus an FIR alleging inducement, suggest an arranged move, not a change of heart.
Whose mandate?	Counsel for the MLAs called resigning before switching "the real way of practicing dissent". Voters decide at the by-election.	Voters chose a party programme in May. By-elections cost public money and can reshape the House one seat at a time.
Is the Speaker the right judge?	Kihoto's majority trusted the office; courts can review mala fide or perverse decisions.	The Kihoto minority said a Speaker who depends on the majority is not independent. Keisham Meghachandra Singh (2020) set a three-month norm and suggested a tribunal headed by a retired judge.

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Reform ideas. According to PRS Legislative Research, the Dinesh Goswami Committee (1990) and the NCRWC (2002) wanted the President or Governor to decide defection cases on the Election Commission's advice, as with office-of-profit cases. The NCRWC also wanted every defector to resign and seek re-election. PRS links the Law Commission's 170th Report (1999) to another idea: limit the whip to votes that decide a government's survival.

Still unknown: how the Speaker will rule on the whip-defiance petitions, what the FIR investigation finds, and whether the Supreme Court takes up the larger question in a better-framed case.

Facts you must know

Item	What to remember
Anti-defection law	The Tenth Schedule, added by the 52nd Amendment (1985)
Who decides disqualification	The Speaker (or Chairman); upheld in Kihoto Hollohan (1992), with courts able to review
Two ways to lose your seat	Voluntarily giving up party membership, or voting/abstaining against the party whip without permission
Merger exception	Protects members only if at least two-thirds of the legislature party agree to merge
Split exception	The old "one-third split" defence was deleted by the 91st Amendment (2003)
91st Amendment also	Capped the council of ministers at 15% of the House, and barred a disqualified defector from becoming a minister until re-elected
Resigning a seat	Allowed by writing to the Speaker, but the Speaker must be satisfied it is voluntary and genuine
Minister without a seat	Can serve for up to six consecutive months without being elected

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⚠️ Common confusions

Split vs merger: only a two-thirds merger protects members now.
Two "six months": a nominated member's window to join a party is not a non-member minister's window to win a seat.
Independents get no window: joining any party disqualifies them.
Resignation ≠ disqualification: it avoids the bar on disqualified defectors becoming ministers, but does not erase a defection already committed.
Amendments: 33rd (1974) resignation, 52nd (1985) Tenth Schedule, 91st (2003) splits deleted and ministries capped.

How CLAT could test this

🧩 Worked example

The Tenth Schedule to the Constitution, added in 1985, tries to stop legislators from changing sides after the voters have chosen them. Its rules apply to Members of Parliament and of state legislatures alike, and each word in them matters. A member elected on a party ticket is disqualified from the House in two situations. The first is when the member voluntarily gives up membership of that party. A formal resignation from the party is not needed; the member's conduct, such as openly joining another party, can show it. The second is when the member votes, or abstains from voting, in the House against a direction issued by the party, without the party's prior permission. Even then, the member is safe if the party condones the vote or abstention within fifteen days. A member elected as an independent is disqualified if they join any political party after the election. A nominated member gets a little more room: they may join a party within six months of taking their seat, but joining after those six months leads to disqualification. There is one important escape route for party members. If the original party merges with another party, no member is disqualified for joining the merged party, or for refusing the merger and sitting as a separate group. But a merger counts only if at least two-thirds of the party's members in that House agree to it. A smaller breakaway group, however loud, gets no protection, because the old exception for splits was removed in 2003. Questions of disqualification are decided by the Speaker or Chairman of the House, whose decision the courts can review. Resignation works differently. Any member may resign the seat by writing to the Speaker. The Speaker must accept the resignation unless satisfied that it is not voluntary or not genuine. Genuine means the member actually wrote it; voluntary means nobody forced the member into it. The member's motive, good or bad, is not the Speaker's concern. However, a resignation cannot wipe out a disqualification the member has already incurred. If the disqualifying act took place before the resignation, the Speaker may still decide the disqualification petition, and the disqualification takes effect from the date of that act. A disqualified member cannot be appointed a minister from the date of disqualification until the day the House's term would have ended, or until the day they are elected again, whichever comes first. Nothing, though, stops a disqualified member from contesting a by-election and returning to the House if the voters choose them.

The Lok Janata Party has 30 MLAs. Eighteen of them announce a "merger" with the Nava Bharat Party and join it; the other 12 stay. Are the 18 disqualified?

ANo, because a majority of the legislature party agreed.

BYes, because 18 is less than two-thirds of 30, so there is no valid merger and they have given up membership.

CNo, because a group larger than one-third counts as a split.

DYes, but only if their party expels them within fifteen days.

▸ Show solution

Answer: B. Two-thirds of 30 is 20, so 18 MLAs cannot make a valid merger. A simple majority (A) does not count, and the split exception (C) was removed in 2003. Joining another party shows they voluntarily gave up membership. D invents a rule, because the 15-day period is about condoning a vote.

🧩 Worked example

MLA Ravi Menon's party directs its members to vote for a Water Regulation Bill. Without permission, Ravi abstains. Twelve days later the party formally condones the abstention. Is Ravi disqualified?

AYes, because he lacked prior permission.

BYes, because abstaining shows he gave up party membership.

CNo, because abstaining is not voting against the direction.

DNo, because the party condoned it within fifteen days.

▸ Show solution

Answer: D. Abstaining against the direction is a ground for disqualification, so C is wrong. But condonation within fifteen days saves the member, and day 12 falls inside that period. It cures the missing permission (A), and nothing shows he left the party (B).

🧩 Worked example

On 3 March, MLA Kavya Iyer votes against her party's whip, and the vote is not condoned. On 10 March she resigns, and the Speaker accepts it as voluntary and genuine. On 20 April the Speaker decides a pending petition and holds that she incurred disqualification on 3 March. In June the Chief Minister wants to make her a minister. The by-election for her seat is in August. Can she be appointed in June?

ANo. The 3 March disqualification survives her resignation, so she cannot be a minister until she is elected again or the term would have ended.

BYes. Once the resignation was accepted, the Speaker could not decide the petition.

CYes. Anyone may be a minister for six months without a seat.

DNo. She can never be a minister during the life of that House, even if she wins the by-election.

▸ Show solution

Answer: A. Resignation does not erase a disqualification already incurred, and the Speaker may still decide the petition (B fails). The ministerial bar runs until re-election or the end of the term, whichever is earlier. It overrides the general six-month route (C), and a by-election win would end it (D fails). This mirrors Shrimanth Balasaheb Patil (2019).

🧩 Worked example

Meera Pillai wins as an independent and, four months later, joins the ruling party, claiming members have six months to pick a party. Is she disqualified?

ANo, because she joined within six months.

BNo, because an independent has no party to defect from.

CYes, because an independent who joins any party after election is disqualified; the six-month window is only for nominated members.

DYes, but only if she later obeys the party's whip.

▸ Show solution

Answer: C. The six-month window belongs only to nominated members. An elected independent is disqualified as soon as she joins a party, whenever that is.

🧩 Worked example

Dr Anand Rao, a scientist with no party affiliation, is nominated to the Rajya Sabha and takes his seat on 1 January. On 10 August he joins a political party. Is he disqualified?

ANo, because nominated members are outside the anti-defection rules.

BYes, because he joined more than six months after taking his seat.

CNo, because he had no party when he was nominated.

DYes, because nominated members may never join a party.

▸ Show solution

Answer: B. A nominated member may join a party only within six months of taking the seat. 1 January to 10 August is more than six months. A and C misread the rule, and D overstates it.

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Frequently asked questions

Why weren't the AIADMK MLAs who joined TVK disqualified under the anti-defection law?

They resigned their Assembly seats first, and the Speaker accepted the resignations under Article 190(3)(b). The Tenth Schedule disqualifies sitting members, so joining TVK after the seat fell vacant was not a fresh defection. Separate disqualification petitions over their earlier vote against the AIADMK whip are still pending before the Speaker.

Can a Speaker reject an MLA's resignation?

Only if, after such inquiry as the Speaker thinks fit, the Speaker is satisfied that the resignation is not voluntary or not genuine (proviso to Article 190(3)(b), added by the 33rd Amendment in 1974). In Shrimanth Balasaheb Patil (2019), the Supreme Court held that the member's motive is not a ground for rejection.

Does resigning wipe out a disqualification for defection?

No. The Supreme Court held in Shrimanth Balasaheb Patil (2019) that disqualification relates back to the date of the defecting act and that a later resignation does not erase it. The Madras High Court applied the same idea in October 2026, holding that resignation and disqualification are separate tracks.

Can a disqualified defector become a minister?

Not immediately. Articles 75(1B) and 164(1B), added by the 91st Amendment (2003), bar a member disqualified under para 2 of the Tenth Schedule from being appointed a minister. The bar lasts until the House's term would have ended or until the person is elected again, whichever is earlier.

What did the 91st Constitutional Amendment change in the anti-defection law?

It deleted the one-third split exception (para 3). It capped the council of ministers at 15% of the Lok Sabha or Assembly, with a minimum of 12 in states. It also barred disqualified defectors from ministerial and remunerative political posts (Articles 75(1B), 164(1B) and 361B).

Who decides anti-defection cases in India?

The Speaker or Chairman of the House, under para 6 of the Tenth Schedule. Kihoto Hollohan (1992) made the decision open to judicial review, and Keisham Meghachandra Singh (2020) said it should ordinarily come within three months. Reform bodies such as the Dinesh Goswami Committee and the NCRWC suggested shifting the decision to the President or Governor acting on the Election Commission's advice.