Raghav Chadha-led AAP MPs’ move to BJP reignites debate over ‘merger’ exception to anti-defection law
New Delhi: Three days after seven of the 10 Rajya Sabha MPs of the Aam Aadmi Party (AAP) announced their ‘merger’ with the Bharatiya Janata Party (BJP), Vice President and Chairman of the Rajya Sabha C.P. Radhakrishnan Monday approved the ‘merger’.
The approval came even as the AAP, through its MP Sanjay Singh, submitted a petition to Radhakrishnan seeking the disqualification of the seven MPs namely Raghav Chadha, Ashok Mittal, Sandeep Pathak, Swati Maliwal, Harbhajan Singh, Vikramjit Singh Sahney and Rajinder Gupta. Chadha, Pathak and Mittal subsequently joined the BJP at the party headquarters in New Delhi hours after declaring the ‘merger’ in a press conference Friday.
The ‘merger’, Chadha and the others argued, did not trigger provisions of the anti-defection law since two-thirds of the AAP’s legislature party in the Upper House merged with the BJP, which is permissible under an exception in the Tenth Schedule of the Constitution.
Defections are not uncommon but recent years have seen a spike in prevalence. According to an analysis by the Association for Democratic Reforms (ADR), 433 national or state legislators switched parties and re-contested elections between 2016 and 2020 alone.
The move by Chadha and others now raises fresh legal questions around the fate of sitting legislators who join rival political parties.
India’s anti-defection law was enacted in 1985 as the 52nd Amendment to the Constitution, part of the Tenth Schedule. It was passed at the tail end of an era of intense political instability that reportedly saw 2,700 state legislators switch parties between 1967 and 1983, bringing down multiple state governments in the process.
The law allows for defecting legislators to be disqualified.
It does, however, make that determination contingent on “the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final”.
Paragraph 7 of the Tenth Schedule shielded the Speaker or Chairman’s decision from judicial review, until the Supreme Court quashed the clause in its 1992 judgment in Kihoto Hollohan vs Zachillhu.
The top court upheld the anti-defection law, while making the Speaker or Chairman’s decision on a disqualification petition amenable to the court’s jurisdiction. Ruling that the Speaker or Chairman function as Tribunals, adjudicating rights and obligations under the Tenth schedule, it dismissed the argument that the anti-defection law violated a lawmaker’s right to free speech, holding it was necessary to check unprincipled defection.
Crucially, the 52nd Amendment had specific exceptions: ‘splits’ where one-third of an existing party left to form a new one; and ‘mergers’ where two-thirds of an existing party decided to join another. The ‘splits’ exception was removed in 2003, but the ‘merger’ exception remains, and is frequently invoked by legislators to avoid disqualification.
The seven Rajya Sabha MPs including Chadha have claimed protection from disqualification under the ‘merger’ exception. Against this backdrop, ThePrint explains the Tenth Schedule, the anti-defection law, and the exceptions.
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Political party & legislature party
The Tenth Schedule specifically distinguishes between “political party” and “legislature party”. According to the Supreme Court, that difference is substantive.
In 2003, a group of 13 MLAs in Uttar Pradesh broke away from the Bahujan Samaj Party (BSP) and claimed ‘split’ protections from disqualification. When the matter made its way to the Supreme Court in 2007, the court rejected their claim.
A ‘split’, the top court ruled in Rajendra Singh Rana vs Swami Prasad Maurya, would have to apply to the original ‘political party’ in its entirety, not just its legislators.
The court faulted the Speaker for failing to investigate the matter, reminding him of the precedent it had earlier set in its 2006 judgment in Jagjit Singh vs State Of Haryana. The court had then ruled that the Speaker in his role as a ‘Tribunal’ cannot casually adjudicate disqualification based on the word of the defecting legislators alone.
In the interim, ‘split’ protections were done away with, but the principle remains legal precedent. As the court itself noted in Subhash Desai vs Principal Secretary, Governor of Maharashtra (2023), the ‘political party’ and its legislators “cannot be conflated”.
If the principle behind Rajendra Singh Rana vs Swami Prasad Maurya applies equally to ‘mergers’, one could argue that the defecting legislators would have to show more than just the support of fellow legislators. They would have to substantiate that the party’s strength—its ordinary members, workers across states—have decided to merge with another party.
Anti-defection law: Paragraph 4 (2)
Paragraph 4 (2) of the Tenth Schedule states that a ‘merger’ of the “original political party” can be validated “if, and only if, not less than two-thirds of the members of the legislature party” agree. Two competing readings of this ambiguous language have been advanced.
In one reading, the legislators themselves are sufficient to both initiate and approve a ‘merger’. This reading of the clause is the one usually cited by defecting legislators to legally defend their claim of a valid ‘merger’. The Goa Bench of the Bombay High Court, in Girish Chodankar vs Goa State Legislative Assembly (2025), read the different parts of the 52nd Amendment as “disjunctive” and decided that the “twin test”, which meant both legislators and party members must approve of the move, “cannot be accepted”.
The case stemmed from 2019, when 10 Goa legislators defected, constituting exactly two-thirds of the Congress strength in the Assembly. They claimed ‘merger’ protections, and the Bombay HC upheld the move. When the appeal reached the Supreme Court in February this year as a Special Leave Petition (SLP), the top court declined to rule on the grounds that the question had become academic since a new Goa legislature had since been seated.
In another reading of Paragraph 4 (2), the process requires the party at large to agree to a ‘merger’, and then the legislators to approve; the party’s agreement is a precondition. Under this interpretation, the erstwhile AAP leaders would be disqualified for failing to show support for their position in the larger party. As the Supreme Court wrote in Rajendra Singh Rana v Swami Prasad Maurya, legislators cannot wear “two hats”, as both legislators and ordinary party members. “Where is the proof of the split in the original party,” it asked.
The ‘merger’ exception has come under criticism from civil society groups and commentators who argue that rather than prevent departure of standalone legislators, it incentivises the mass, organised defections of large groups.
The decision in Rajendra Singh Rana vs Swami Prasad Maurya offered a basis to mitigate that problem by forcing defecting legislators to meet a much higher evidentiary bar to successfully claim ‘merger’ protections. Yet, there remains no final word on whether it applies to ‘mergers’. Since 2016, large groups of legislators in at least six states have claimed those protections and avoided disqualification. If the AAP challenge makes it to the Supreme Court, it would be the first such case under judicial review by the top court.
Sahaj Sankaran is an alum of ThePrint School of Journalism, currently interning with ThePrint.
(Edited by Amrtansh Arora)
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