The smart move by Raghav Chadha and other AAP MPs

Following reports of Raghav Chadha and other AAP Rajya Sabha MPs leaving the Aam Aadmi Party (AAP) to join the BJP, legal experts said the Tenth Schedule would not prevent such political defections if they take the form of a “merger,” as the anti-defection law permits two-thirds of a legislature party to break away and merge with another party, without attracting disqualification.

Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul and Maninder Singh have stated thay Section 4(2) of the Tenth Schedule provides that the penalty of disqualification may not arise if two-thirds of the strength of a legislature party in a House approves breaking away from the party on whose ticket they got elected and merged with another party.

Also read: Raghav Chadha quits AAP, a party he co-founded with Arvind Kejriwal, to join BJP


"The Tenth Schedule says that (i) one political party must merge with another and (ii) two-thirds members of the legislature party must agree to the said merger. SC held that the legislature party and political party cannot be conflated as they are separate entities. Accordingly, mere merger of legislature parties is not sufficient," senior advocate A M Singhvi, who as lead advocate in matters where he had opposed and supported such political decisions in SC, told TOI.

AAP had 10 MPs in Rajya Sabha and seven members would constitute two-thirds of its legislative party in the House.

Raghav Chadha made the strategy clear in his post on X: “We, two-thirds of the Members of Parliament belonging to the Aam Aadmi Party (AAP) in the Rajya Sabha, will exercise the provisions of the Constitution of India and merge with the Bharatiya Janata Party (BJP).”

Also read:Switch by Raghav Chadha, others no surprise as BJP targets new voter blocs in Punjab

However, Singhvi added that the more significant factor is that the arbiter of such disputes is the presiding officer or Speaker of the House, who often owes the position to the ruling dispensation, making it difficult to secure the disqualification of such MPs or MLAs under the anti-defection law.

"I have said so many times over last decade that Tenth Schedule is a sterile part of the Constitution, which should be repealed and substituted by two lines: Any MP/MLA who defects from the party from which he got elected to House shall cease to be a member of House and must seek re-election," Singhvi said.

Kaul said, "If two-thirds of members of a legislature party approve that a merger has happened of the party, then the merger is deemed to have happened and, therefore, it is a valid defence by them to avoid disqualification in the House." He said in Shiv Sena case, SC had accepted that Section 4(2) of Tenth Schedule was a valid defence in disqualification proceedings.

Rohatgi and Singh said a legislative party was relatable to the House concerned. “If two-thirds of the total members of a party in RS decide to merge with another party, it shall be considered a valid merger and will not invite disqualification under the anti-defction law.” In April 2003, an amendment to the Tenth Schedule barred the earlier practice of defections arising from splits within a party.

Raghav Chadha's move to leave the Kejriwal-led AAP and join BJP has sparked a major political row, including a wider realignment within the party's parliamentary ranks.

(With inputs from TOI)