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Scrap , Impose 10-Year for Defecting Legislators: Kapil Sibal to Lawyers
In a sharply worded address to legal professionals, has called for a fundamental restructuring of India’s regime, urging Parliament to scrap the of the Constitution entirely and replace it with a single, draconian provision: any legislator who changes party midterm must be disqualified from holding any public office or constitutional position for ten years. Speaking at an event organised by the in Kochi, Sibal argued that the existing framework has not only failed to deter political defections but has actively enabled them through loopholes such as the and the Speaker’s discretionary role.
A Radical Proposal to End Political Defections
Sibal’s proposal comes at a time when the phenomenon of —popularly termed ‘’—continues to undermine the stability of state and national legislatures. The current , inserted by the in , provides for on grounds of but carves out exceptions for mergers and splits. Over the decades, the schedule has been widely criticised for placing the power of decision in the hands of the Speaker, who often belongs to the ruling party, and for allowing defecting legislators to escape by engineering a merger or by resigning and re-contesting elections.
“I think we need a complete overhaul. We should scrap the 10th Schedule, and we should amend the Constitution with only one provision,” Sibal told the gathering. “Anybody who changes his party mid-term will not hold public office or any position or constitutional authority for the next 10 years. Nobody will then indulge in .”
The senior advocate emphasised that should not be an exception to , as it currently is under and 190. He noted that a defecting MP or MLA can simply resign and then contest a , effectively nullifying the anti- law. “This should apply to and ,” he said, warning that the proposed provision must cover both actions to close the escape route.
The Inadequacy of the Current Framework
Sibal traced the deficiencies of the to its structure, which he said was designed with too many escape hatches. He pointed to the historical misuse of the ‘’ provision, which was deleted by the in following the Mayawati episode. In that case, the ’s 13 legislators crossed over, then another group, and eventually a third group of 39—one-third of the party’s strength—prompted the Speaker to recognise a . The later struck down that practice, leading to the removal of the exception.
“ was misused the same way merger is being misused,” Sibal said. He cited recent examples from the Aam Aadmi Party, the , and the . “Punjab, which did not have any MPs, suddenly got 7 MPs after Rajya Sabha MPs merged with the . Punjab did not vote for them.” He also referred to a North Eastern party that gained 18 MPs after certain Trinamool members merged with it, despite the party having no prior representation in Parliament.
Under current law, a merger is valid only if at least two-thirds of the members of a party’s agree to it. However, Sibal argued that this exception is being exploited to circumvent by defecting en masse. He has filed a in the seeking a declaration that a merger must be of the political party itself, not merely its . “If the decides the matter, there won’t be this kind of , but they will find other ways. Political parties in this country are very innovative; they create a lot of IPR in that process so that intellectual property can’t be touched.”
A Pending Challenge
During the interactive session, a member of the audience asked Sibal whether the problems could be cured by interpretation or amendment. The senior advocate expressed pessimism about interpretation, noting that the has not decided a crucial pending matter for years. “Interpretation may not solve the problem because the has not yet decided the issue pending before it for years. I don’t know how long the will take to decide because they have chosen not to list it.”
Sibal’s own petition, filed in , challenges the of the as applied to legislative parties. The case has been pending before a , but no hearing date has been fixed. Legal experts have pointed out that the delay itself underscores the need for a legislative fix rather than judicial intervention.
The Political Reality
When pressed on the feasibility of a in the current political climate, Sibal acknowledged the difficulty but remained defiant. “Given the political dispensation, we are not powerful to have such kind of amendment in the near future… and interestingly the is taking time. Do you think there is any alternative?” When the audience member pushed further, Sibal responded with a wry laugh: “Raise it with Cockroach Janata Party,” a remark that drew both laughter and nods of understanding from the audience.
The comment reflected the broader frustration among legal and political circles that the very parties that benefit from defections have little incentive to reform the system. Sibal’s call for a simple, provision may be seen as idealistic, but it resonates with a growing demand for legislative integrity.
What This Means for the Legal Community
For lawyers and constitutional scholars, Sibal’s proposal highlights the enduring tension between democratic choice and political stability. The was intended as a compromise—allowing some flexibility for mergers while penalising individual defections. But that compromise has become a sieve. The suggestion to impose a , with no exceptions for or merger, would represent a seismic shift in election law.
If such an amendment were enacted, it would require parties to rely on rather than the threat of by a Speaker. It would also effectively end the practice of that has reshaped governments in states like Maharashtra, Goa, and Madhya Pradesh.
Whether the proposal gains political traction remains to be seen. But Sibal’s address has reignited the debate, and with a crucial petition in the pipeline, the legal community will be watching closely. As he concluded, “No , no changing of sides. That is the only way to protect democracy.”
