Political Philosophy
The Undefined Party: What Entered the Constitution in 1985
18 September 2026 · 18 min read
The Constitution of India describes a parliamentary system in considerable detail. It provides for a Council of Ministers collectively responsible to the House of the People, for a Prime Minister appointed by the President and other Ministers appointed on his advice, for elections on the basis of adult suffrage, for an Election Commission with superintendence over their conduct, and for a member's seat to be forfeited on any of five specified grounds. It does not, anywhere in the text as enacted in 1950, mention a political party.
The omission is not a matter of emphasis. It is literal. In the official consolidated compilation of the Constitution published by the Legislative Department — the edition current as on 1 May 2026 — the expression "political party" appears in exactly four provisions: the Tenth Schedule, inserted in 1985, and Articles 75(1B), 164(1B) and 361B, all inserted in 2003. Apart from the Tenth Schedule's own defined compound "legislature party", every other occurrence of the word in the document is the signatory's or the litigant's sense — a party to a proceeding, a party to a covenant, a party to a boundary agreement. A single further reference, to the "Leader of single largest Opposition Party in the House of the People", appears in Article 124A, inserted in 2014, and that article was struck down before it operated.
So the institution through which the entire scheme of responsible government actually runs is absent from the document for thirty-five years, and when it arrives, it arrives in a Schedule headed "Provisions as to disqualification on ground of defection". It is worth asking what the text had in its place, what changed when the party entered, and what the Constitution has said about parties since — because the answer to the last question is that it has said nothing except when a party's demand and a member's seat are in conflict.
What the text has instead: the member, one at a time
The original scheme is built on the individual member, and it is consistent about it.
A member is elected to a seat. Before taking it he makes an oath, in the form the Third Schedule prescribes for a member of Parliament, in his own name: "I, A.B., having been elected (or nominated) a member of the Council of States (or the House of the People) do swear ... that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter." There is no third party to the undertaking. The allegiance is owed to the Constitution, and the duty is the one attaching to the seat.
He then votes. Article 100(1) provides that all questions at any sitting shall be determined "by a majority of votes of the members present and voting" — a count of members, not of blocs, with the Speaker excluded from the first instance and given a casting vote. Article 105(2) protects what he does with that vote: "No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof." Article 194(2) says the same for a member of a State Legislature. The protection is conferred on the member personally and attaches to the vote as such, without reference to how he came to cast it.
He may lose the seat, but only on grounds that are attributes of the person. Article 102(1), as enacted, listed five: holding an office of profit, unsoundness of mind declared by a competent court, undischarged insolvency, want of citizenship or acknowledgment of allegiance to a foreign State, and disqualification by or under a law made by Parliament. Article 191(1) listed the same five for a State. Not one of them concerns his conduct in the House. A question whether a member has become subject to any of them is referred under Article 103 to the President, who "shall obtain the opinion of the Election Commission and shall act according to such opinion" — a decision taken outside the House, on an opinion the deciding authority is bound to follow.
Even the Executive is described without the intermediary. Article 75(1) provides that "the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister". Nothing is said about who commands a majority, or how a majority is assembled, or what a majority consists of. Article 75(3) supplies the only link: the Council of Ministers "shall be collectively responsible to the House of the People". The mechanism by which a House delivers a stable majority to a Prime Minister is left entirely to the world outside the text.
And where the Constitution was concerned that a vote should be free of pressure, it said so directly. Article 55(3) requires that the election of the President "shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot"; Article 66(1) requires the same for the Vice-President. The drafting knows how to insulate a member's choice when it wants to. In the ordinary business of the House, it protects the vote against courts and says nothing about anyone else.
1985: what enters, and how
The Constitution (Fifty-second Amendment) Act, 1985 did three things with effect from 1 March 1985. By section 3 it inserted Article 102(2): "A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule." By section 5 it inserted Article 191(2) in identical terms for the States. By section 6 it added the Tenth Schedule itself, which carries at its head the bracketed anchor "[Articles 102(2) and 191(2)]".
That anchor is the whole of the party's constitutional standing. The Schedule is attached to the disqualification articles and to nothing else. It confers no status, no recognition, no capacity, no obligation. It is a sixth ground on which a seat is lost, added to the five that concern office, mind, solvency, citizenship and statutory disqualification.
Paragraph 2(1) states the ground:
a member of a House belonging to any political party shall be disqualified for being a member of the House— (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Two features of clause (b) are worth separating. The first is that the operative instrument is a "direction", and the Constitution says nothing whatever about what a direction is, in what form it must be issued, to whom it must be communicated, or on what subjects it may be given. The second is that the direction need not come from the party at all: it may come from "any person or authority authorised by it in this behalf", and the Constitution does not say who may be so authorised, or how, or whether the member must be told. The same undefined person or authority may also grant prior permission, or condone the breach within fifteen days. A seat is therefore made to depend on the decision of an actor the Constitution neither names nor describes.
Paragraph 6(1) provides that the question is referred "for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final", with a proviso for the case where the presiding officer is himself the member in question. This is a deliberate departure. The five original grounds go to the President or the Governor on the Election Commission's binding opinion; the sixth goes to the presiding officer of the House itself — in the House of the People and in a Legislative Assembly, a member whom that House has chosen to be its Speaker under Article 93 or Article 178. Paragraph 6(2) then deems all such proceedings to be "proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212".
A definition clause that does not define
Paragraph 1 of the Tenth Schedule is headed "Interpretation" and defines four expressions. It defines "House". It defines "legislature party" as "the group consisting of all the members of that House for the time being belonging to that political party". It defines "original political party" as "the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2". It defines "paragraph".
It does not define "political party". Two of the four definitions are constructed out of the undefined term. The Schedule tells us what a group of members of one party in one House is called, and what the party a member started in is called, and leaves the thing itself unexplained.
What it supplies instead is a rule of attribution. The Explanation to paragraph 2(1) provides that "an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member", and that a nominated member belongs to the party he was a member of at nomination or, failing that, to the party he joins within six months of taking his seat. Membership for this purpose is thus not a matter of the member's own choosing at all, and not a matter of any register the Constitution knows of. It is fixed by an act performed by someone else, before the election, in a process the Schedule does not describe: being "set up as a candidate".
The words "if any" in that Explanation are the text's own acknowledgment that a member may belong to no party. Paragraph 2(2) then provides that such a member "shall be disqualified for being a member of the House if he joins any political party after such election". An independent may not join; a party member may not leave; and what he may not join or leave is never said.
The clause has also kept a scar. Paragraph 1(b) defines "legislature party" by reference to "the provisions of paragraph 2 or *** paragraph 4", the asterisks marking words omitted by the Constitution (Ninety-first Amendment) Act, 2003 with effect from 1 January 2004. The same amendment omitted paragraph 3 entirely; the compilation now prints in its place a line of asterisks between paragraphs 2 and 4.
Where the definition actually lives
A definition exists. It is not in the Constitution, it arrived four years after the Schedule that needed it, and it is expressly confined to another statute.
Part IVA of the Representation of the People Act, 1951 — headed "Registration of political parties" — was inserted by Act 1 of 1989 with effect from 15 June 1989. Section 29A(1) provides: "Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act." The same amending Act inserted section 2(1)(f): "'political party' means an association or a body of individual citizens of India registered with the Election Commission as a political party under section 29A."
Three things follow from the drafting. The entity is self-declared before it is registered — it is a body "calling itself a political party". The definition operates "for the purposes of this Act", so it does not, of its own force, define the term for the Tenth Schedule. And the qualifying conditions are thin: section 29A(5) requires that the memorandum or rules "contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India". That is a clause in a document, required once, at registration. Section 29A(7) makes registration a decision of the Commission after hearing the body's representatives, and section 29A(8) provides that "the decision of the Commission shall be final".
The further distinction on which a great deal of electoral practice turns is not in any statute either. Section 52, which allows a party whose candidate has died before the poll to nominate another, carries an Explanation giving "recognised political party", for the purposes of that section and sections 33 and 38, the meaning of a political party recognised by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968. A materially identical Explanation carries the same meaning into section 39A and the Chapter on election expenses. Recognition — which determines, among other things, whether a candidate needs one proposer or ten under the first proviso to section 33(1), and how time is allocated on electronic media under section 39A — is thus governed by an executive order of 1968.
The hierarchy is therefore inverted in an unusual way. The consequence is constitutional: loss of a seat. The definition of the entity that triggers it is statutory, later in time, and confined to a different Act. The classification that determines what the entity can do at an election is in subordinate legislation older than both.
The vote the courts may not question
The sharpest feature of the arrangement is what it does not touch.
Article 105(2) has not been amended. A member remains not liable "to any proceedings in any court in respect of anything said or any vote given by him in Parliament". The Tenth Schedule does not withdraw that immunity and does not need to, because the consequence it attaches to the vote is not a proceeding in a court. It is a disqualification, decided by the presiding officer, in proceedings that paragraph 6(2) deems to be proceedings in the House. Nor is the point about what a court may review of the presiding officer's order: paragraph 7, which would have barred every court from any matter connected with a disqualification under the Schedule, is printed in the compilation with an asterisk and a footnote recording that it was declared invalid for want of ratification under the proviso to Article 368(2). The point is narrower and concerns the member's vote alone.
The result is that the same vote is simultaneously immune and fatal. No court may entertain a proceeding against the member for casting it; the House's own presiding officer may declare, on the strength of it, that he is no longer a member. The 1950 text protected the vote against the one forum it thought could threaten it. The 1985 text located the threat somewhere the protection does not reach.
Paragraph 5 confirms, by exception, what the rest of the Schedule assumes. A person elected Speaker, Deputy Speaker, Chairman or Deputy Chairman is not disqualified if, by reason of that election, he gives up his party membership and does not rejoin while in office, or rejoins after ceasing to hold it. The Constitution thus recognises exactly one role in which detachment from a party is a thing to be protected — the chair — and protects it by suspending the ordinary rule rather than by stating a principle.
2003: the consequence extended outward
The Constitution (Ninety-first Amendment) Act, 2003 left paragraph 2 alone and enlarged what a disqualification under it costs. It inserted Article 75(1B) and Article 164(1B), both with effect from 1 January 2004, and Article 361B. Each is built on the same formula: a member "belonging to any political party" who is disqualified under paragraph 2 of the Tenth Schedule is also disqualified — from appointment as a Minister for the Union, from appointment as a Minister in a State, and from holding "any remunerative political post" — for the remainder of the term of the seat he lost, or until he contests and is declared elected again, whichever is earlier.
These are the three occasions, apart from the Schedule itself, on which the Constitution uses the words "political party". All three are disqualifying provisions, and all three take the party as given. The same amendment capped the Council of Ministers at fifteen per cent. of the House of the People under Article 75(1A), and at fifteen per cent. of the Legislative Assembly, subject to a floor of twelve, under Article 164(1A); and it omitted paragraph 3 of the Tenth Schedule.
Whatever else the 2003 amendment achieved, it settled the direction of the Constitution's interest. Over fifty-three years the text acquired four references to political parties, and each of them answers the question: what does a member lose when he departs from one. None of them answers: what is one, how is it formed, to whom does it account, what may it not direct.
The exception that never operated
There is one provision in which the Constitution treated a party as something other than an occasion for disqualification, and it is instructive that it is no longer law.
Article 124A, inserted by the Constitution (Ninety-ninth Amendment) Act, 2014, constituted the National Judicial Appointments Commission and provided in clause (1)(d) for two eminent persons to be nominated by a committee "consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People". That is the only place in which the document assigns a function to a party position, and it does so only in the alternative, as a fallback for the case where there is no Leader of Opposition in the House of the People.
The compilation prints the article with a footnote recording that the amendment "has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117". The one constitutional provision that gave a party a role in filling an office, rather than in emptying a seat, stood in the text for about six months. It was inserted with effect from 13 April 2015 and struck down on 16 October 2015.
What the omission decides
It would be easy to read the absence of parties from the 1950 text as an oversight, or as evidence that the framers expected a politics without them. Neither is necessary. The drafting is consistent with a different and more ordinary assumption: that a party is a voluntary association, that associations are formed under Article 19(1)(c) and regulated, if at all, by ordinary law, and that a Constitution regulating the organs of the State has no more occasion to describe a party than to describe a trade union or a newspaper.
What that assumption did not survive was the decision to make the association's internal discipline a constitutional event. Once a direction issued by a party — or by an unnamed person authorised by it — can cost a member the seat the electorate gave him, the party is no longer merely an association operating in the space the Constitution leaves free. It is the source of an instrument to which the Constitution has attached the loss of a seat — and the Constitution has attached that consequence without describing either the instrument or its author.
The consequence is a set of asymmetries that follow directly from the text rather than from any view about defection. The member's obligations are constitutional, particular and enforceable: he swears an oath in a prescribed form, votes in a counted House, and forfeits his seat for a specified list of things. The party's position is constitutional in its effect and absent in its content: it issues directions of unstated form on unstated subjects through unstated agents, and owes, under the Constitution, nothing to anyone. The only duty of allegiance the law asks of it is a sentence in its own memorandum, required by a statute enacted in 1989 for the purposes of that statute.
There is no drafting difficulty in doing otherwise. The Tenth Schedule found room to define "legislature party" and "original political party". It could have defined "political party", required a direction to be in writing, confined directions to specified classes of business, or named the authority competent to issue one. It did none of these, and the three articles added in 2003 repeated the omission rather than repairing it.
The Constitution, in other words, does not decline to notice political parties. It notices them once, at the point where the party's demand and the member's seat collide, and decides that contest in the party's favour. Everything else about a party — what it is, how it is constituted, what it owes the member whose seat it can cost — it leaves to a statute, an executive order of 1968, and the party's own rules.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.