Published Sep 24, 2026 | 6:40 PM ⚊ Updated Sep 24, 2026 | 6:40 PM
Danam Nagender
Synopsis: Danam Nagender, who won on a BRS ticket, was disqualified after switching sides and joining the Congress. However, the disqualification does not bar him from contesting the Assembly bypoll. His disqualification under the Tenth Schedule has created a vacancy in the Khairatabad seat. But the legal consequence does not necessarily prevent him from contesting that vacancy. This may seem counter-intuitive.
Danam Nagender may have been disqualified from the Telangana Assembly, but the Constitution has not necessarily disqualified him from asking the same voters to elect him again. That is not a loophole created for political convenience; it is a consequence of how India’s anti-defection law has been constitutionally designed.
The immediate political drama surrounding the Khairatabad Assembly seat can therefore obscure a more important legal question. If Nagender’s membership has been terminated because of defection, why should he be allowed to contest the by-election created by that very disqualification?
The answer lies in a distinction that appears technical but carries considerable constitutional weight: disqualification from being a member is not automatically the same as disqualification from being chosen as a member.
Nagender’s case has brought this distinction sharply into public view. His disqualification under the Tenth Schedule has created a vacancy in the Khairatabad seat. But the legal consequence does not necessarily prevent him from contesting that vacancy.
This may seem counter-intuitive. The anti-defection law was enacted because legislators changing political allegiance was regarded as corrosive to parliamentary democracy. If a legislator crosses the political line, loses his seat and then immediately returns to the electorate asking for another mandate, the entire episode can appear to defeat the purpose of the law.
Yet constitutional law does not operate on political intuition.
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The Tenth Schedule says a member of a House belonging to a political party shall be disqualified if s/he voluntarily gives up the membership of that party, or violates the conditions relating to voting against the party direction. Article 191(2) similarly provides for disqualification “for being a member” when the Tenth Schedule applies.
That wording matters.
Article 191(1), which deals with other forms of disqualification, uses a broader formulation. It refers to a person being disqualified “for being chosen as, and for being, a member”. Article 191(2), dealing specifically with defection, does not contain the words “for being chosen as”.
The Supreme Court examined this distinction in 2019 in the case concerning Karnataka legislators disqualified under the Tenth Schedule. Its conclusion was unequivocal: Tenth Schedule disqualification does not, by itself, create a bar against contesting a subsequent election. The court also held that a Speaker does not possess the power to impose an additional prohibition preventing a disqualified legislator from contesting elections for the remainder of the Assembly’s term.
The constitutional paradox is therefore unavoidable.
The law can say: You cannot continue as an MLA.
It does not necessarily say: You cannot ask the people to make you an MLA again.
That distinction is central to understanding what may happen in Khairatabad.
The argument that such a person should be prevented from contesting is politically understandable. Otherwise, the punishment for defection can appear strangely incomplete. A legislator loses the seat but can potentially return through a by-election almost immediately. Critics can reasonably ask whether such a system adequately deters defections.
But that is an argument for Parliament to consider changing the law, not for the existing constitutional provision to be interpreted beyond its language.
The Supreme Court itself drew that line. The judgment recognised the seriousness of defection and the constitutional objective of the Tenth Schedule, but held that the desirability of a particular restriction cannot be confused with the existence of legal power to impose it. In other words, political morality cannot substitute for constitutional text.
There is another revealing aspect to the constitutional scheme. The 91st Constitutional Amendment introduced additional consequences for legislators disqualified under the Tenth Schedule. A disqualified legislator faces restrictions on becoming a minister or holding certain remunerative political posts. But those restrictions themselves contain an important qualification: they operate until the end of the relevant period or until the person is elected again, whichever is earlier.
That wording assumes that a disqualified legislator may contest and be elected before the original Assembly term expires.
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The law, therefore, distinguishes between punishment for an act of defection and the continuing right of the electorate to choose its representative.
This is where the Nagender episode becomes constitutionally significant beyond one constituency or one politician.
A by-election is not a judicial appeal against disqualification. It is a fresh election. The voters are not being asked to overturn the court’s decision. They are being asked to choose a representative for a vacant seat.
If Nagender contests, the legal question and the political question will consequently be separate. The courts may determine that his earlier membership could not continue. The electorate may then decide whether he should receive a new mandate.
The two decisions can coexist.
That may be uncomfortable, but democracy frequently produces uncomfortable constitutional outcomes.
Nor does eligibility to contest mean entitlement to a party ticket or victory at the ballot box. A candidate must still satisfy every other applicable qualification under election law. An independent statutory disqualification, if applicable, could change the position. The Tenth Schedule alone, however, does not supply that additional electoral bar.
The larger question is whether India’s anti-defection regime should remain structured this way.
The present framework punishes the legislator by terminating membership and imposing certain additional consequences. It does not permanently transfer the power of political choice from the electorate to the law. The voter remains free to reject the disqualified legislator — or return him to the House.
That may be viewed as a weakness of the anti-defection regime or as a protection of electoral sovereignty. The constitutional text, however, presently leaves that choice with the voter.
This makes the Khairatabad by-election potentially more than a routine electoral exercise. It could become a test of the difference between disqualification by law and rejection by the electorate.
Danam Nagender may have lost his seat through the operation of the anti-defection law. But if the law does not prevent him from contesting again, the final verdict on whether he returns to the Assembly will not belong to the Speaker, the court or the political parties.
(Views are personal. Edited by Majnu Babu).
