Anti-defection law won't apply to AAP MPs, say experts

Seven of the ten Rajya Sabha members belonging to a regional political party resigned from their party and submitted a merger application to the Rajya Sabha ...

What Happened

Seven of the ten Rajya Sabha members belonging to a regional political party resigned from their party and submitted a merger application to the Rajya Sabha Chairman, seeking to merge their legislature party group with the ruling national party.
The group submitted signed letters from all seven members to the Rajya Sabha Chairman on April 24, 2026, formally invoking Paragraph 4 (merger provision) of the Tenth Schedule of the Constitution.
The departing members constitute 70% of the party's Rajya Sabha legislature group — exceeding the two-thirds threshold required under Paragraph 4 to qualify as a valid legislative merger free from disqualification.
The party remaining behind (three members) immediately announced it would petition the Rajya Sabha Chairman to disqualify the departed members on the ground that joining another party amounts to voluntarily relinquishing membership under Paragraph 2(1)(a) of the Tenth Schedule.
Legal experts were divided: those supporting the departure argued the two-thirds threshold was validly met, while opponents argued that under Paragraph 4, a "merger" also requires the original political party (not just its legislature wing) to have agreed to the merger — a condition allegedly not satisfied here.
The development leaves the original party with three Rajya Sabha members, reducing its effective parliamentary presence, while the gaining party's standalone strength in the Upper House rises significantly.

Static Topic Bridges

Tenth Schedule — Anti-Defection Law

The Tenth Schedule was inserted into the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985, to curb the phenomenon of political defections that had destabilised governments throughout the 1970s and early 1980s. It applies to members of both Houses of Parliament and of State Legislatures.

Paragraph 2(1)(a): A member is disqualified if they "voluntarily give up the membership" of the political party on whose ticket they were elected.
Paragraph 2(1)(b): A member is disqualified if they vote or abstain contrary to any direction issued by their political party without prior permission.
Paragraph 4 (Merger Exception): Disqualification does not apply if the merger of the original political party is effected with another party, provided not less than two-thirds of the members of the legislature party have agreed to the merger.
Paragraph 6: The Speaker or Chairman of the relevant House is the sole adjudicatory authority on disqualification — decisions are final subject only to judicial review.
91st Constitutional Amendment Act, 2003: Deleted the earlier "split" exception (Paragraph 3, which had allowed one-third of members to split without disqualification) — only the merger exception survives today.

Connection to this news: The seven members argued they satisfy Paragraph 4's two-thirds threshold (7 out of 10 = 70%). The opposing view holds that Paragraph 4 requires not merely the legislature party to agree but also the original political party organisation itself to have decided on a merger — making this legally contestable.

Article 102(2) and the Rajya Sabha Chairman as Adjudicator

Article 102(2) of the Constitution provides that a person shall be disqualified for being a member of either House of Parliament if they are so disqualified under the Tenth Schedule. The Chairman of the Rajya Sabha (Vice President of India, ex officio) is the designated adjudicating authority for Tenth Schedule disqualification petitions in the Upper House.

Article 102(2): Disqualification for Parliament membership incorporating the Tenth Schedule — mirrors Article 191(2) for State Legislatures.
The Chairman acts in a quasi-judicial capacity when deciding disqualification petitions; the decision is subject to judicial review by the Supreme Court or High Court.
Under Paragraph 6(1) of the Tenth Schedule, the Chairman's decision is "final" — but courts have clarified this means final subject to judicial review, not immune from it (Kihoto Hollohan, 1992).
There is no prescribed time limit for the Chairman to decide a petition, which has historically led to prolonged pendency.

Connection to this news: The party has announced it will file a disqualification petition before the Rajya Sabha Chairman. The outcome will hinge on whether the Chairman accepts the merger as valid under Paragraph 4 or treats the move as a voluntary relinquishment under Paragraph 2(1)(a).

Kihoto Hollohan v. Zachillhu (1992) — Landmark Constitution Bench Judgment

This is the foundational Supreme Court judgment on the constitutional validity and interpretation of the Tenth Schedule, delivered on February 18, 1992 by a five-judge Constitution Bench.

The Court (3:2 majority) upheld the constitutional validity of the Tenth Schedule in its core provisions.
Paragraph 7 (which had barred courts from exercising jurisdiction over Tenth Schedule proceedings) was struck down as unconstitutional — it required ratification by state legislatures under the proviso to Article 368(2) but had not been so ratified.
The judgment firmly established that the Speaker's/Chairman's orders under the Tenth Schedule are subject to judicial review, particularly on grounds of constitutional infirmity or violation of natural justice.
The Court held that the anti-defection law does not violate the basic structure of the Constitution; it upholds the mandate to the electorate and democratic accountability.
Dissenting judges (Justice J.S. Verma and Justice M.M. Punchhi) argued that conferring finality of decision on the Speaker/Chairman (a political office-holder) creates a structural bias.

Connection to this news: Any challenge to the Rajya Sabha Chairman's order — whether it disqualifies or clears the departing members — will be governed by the Kihoto Hollohan precedent: the order is judicially reviewable but courts typically defer to the adjudicator's factual findings.

Criticisms and Reform Proposals for the Tenth Schedule

The Tenth Schedule has attracted sustained criticism for its structural loopholes, particularly the merger exception and the Speaker/Chairman's role as adjudicator.

Law Commission of India (170th Report): Recommended deletion of the merger exception (then Paragraph 3 — splits; now Paragraph 4 — mergers) to plug the legal route for organised defections.
Dinesh Goswami Committee (1990): Recommended that disqualification decisions be made by the President/Governor on the advice of the Election Commission, not the Speaker/Chairman.
91st Amendment (2003): Deleted the split exception but retained the merger exception — addressing one loophole while leaving another open.
Critics argue the merger exception "legalises" bulk defections as long as numerical thresholds are met, undermining the law's core purpose of ensuring political stability and voter mandate.
Some experts have called for an independent tribunal — not the presiding officer of the House — to decide defection cases, to eliminate partisan adjudication.

Connection to this news: The current situation illustrates precisely how the merger exception can be used to circumvent the anti-defection law's intent. The debate over whether a "legislature party merger" without an "original party merger" qualifies under Paragraph 4 has renewed calls for a comprehensive review of the Tenth Schedule.

Key Facts & Data

Tenth Schedule inserted by: Constitution (Fifty-Second Amendment) Act, 1985
Merger threshold: Not less than two-thirds of the legislature party members (Paragraph 4, Tenth Schedule)
Split exception abolished by: Constitution (Ninety-First Amendment) Act, 2003
AAP's Rajya Sabha strength before merger: 10 members
Members invoking merger: 7 (= 70%, above two-thirds threshold)
Adjudicating authority (Rajya Sabha): Rajya Sabha Chairman (Vice President of India, ex officio)
Article 102(2): Constitutional provision incorporating Tenth Schedule disqualification for Parliament members
Kihoto Hollohan v. Zachillhu: 1992 Supreme Court Constitution Bench judgment upholding Tenth Schedule validity (3:2)
Paragraph 7 of Tenth Schedule: Struck down in Kihoto Hollohan for lack of state ratification under Article 368(2) proviso
Law Commission 170th Report: Recommended deletion of the merger exception