Will AAP Rajya Sabha MPs face disqualification after joining BJP? Explained

A petition was filed before the Rajya Sabha Chairman seeking disqualification of members under the Tenth Schedule after they voluntarily gave up their member...

What Happened

A petition was filed before the Rajya Sabha Chairman seeking disqualification of members under the Tenth Schedule after they voluntarily gave up their membership of their parent party.
Seven Rajya Sabha members collectively announced they were leaving their original party and merging with another, triggering constitutional questions about whether this constitutes disqualification-worthy defection.
The petitioners argue that the move amounts to defection; the members claim protection under the merger exception in Paragraph 4 of the Tenth Schedule.
The Rajya Sabha Chairman, in his capacity as the constitutionally designated authority under Paragraph 6 of the Tenth Schedule, is now the adjudicating body for this dispute.

Static Topic Bridges

Tenth Schedule — Anti-Defection Law and Grounds for Disqualification

The Tenth Schedule was inserted into the Constitution by the 52nd Constitutional Amendment Act, 1985. It operates through Articles 102(2) (for Parliament) and 191(2) (for State Legislatures), providing for the disqualification of members who defect.

Grounds for disqualification under Paragraph 2: - Voluntarily giving up membership of the political party on whose ticket the member was elected. - Voting or abstaining from voting in the House contrary to the direction of the party, without prior permission.

Inserted by: 52nd Constitutional Amendment Act, 1985
Constitutional hooks: Articles 102(2) and 191(2)
Paragraph 2: defines the two main grounds for disqualification
Paragraph 5: exempts the Speaker/Chairman of the House from disqualification when they voluntarily give up party membership upon assuming office
Paragraph 6: designates the Speaker (Lok Sabha/Assembly) or Chairman (Rajya Sabha) as the sole adjudicating authority for disqualification petitions

Connection to this news: The petition before the Rajya Sabha Chairman invokes Paragraph 2 — that voluntarily giving up party membership is a ground for disqualification — and the Chairman must determine whether the merger exception under Paragraph 4 shields the members.

The Presiding Officer as Sole Adjudicating Authority (Paragraph 6)

Paragraph 6 of the Tenth Schedule designates the Speaker of the Lok Sabha/State Assembly or the Chairman of the Rajya Sabha (i.e., the Vice-President of India) as the final decision-making authority on disqualification petitions. This is a critical feature: the presiding officer of the relevant House — not a court, not the Election Commission — adjudicates defection cases.

In Rajya Sabha cases, the adjudicating authority is the Chairman (Vice-President of India), not the Speaker.
The original Tenth Schedule provided that the presiding officer's decision was not subject to judicial review. This was struck down by the Supreme Court in Kihoto Hollohan v. Zachillhu (1992).
Post-Kihoto Hollohan, decisions of the presiding officer are subject to judicial review on grounds of mala fides, perversity, or violation of constitutional mandates.
The Supreme Court has held that disqualification proceedings must be decided within a reasonable time — generally not exceeding three months from receipt of the petition.

Procedure: 1. A complaint/petition is filed before the presiding officer by any member of the House. 2. The accused member is served notice and given an opportunity to be heard. 3. The presiding officer may refer the matter to a committee for inquiry. 4. The presiding officer issues a final speaking order granting or rejecting disqualification. 5. The order is subject to judicial review before the Supreme Court or High Court.

Connection to this news: The disqualification petition in this case is filed before the Rajya Sabha Chairman. His decision — whether the members' merger with another party was valid under Paragraph 4 — will be the primary adjudication, subject to review by courts.

Kihoto Hollohan v. Zachillhu (1992) — Landmark Ruling on Tenth Schedule

This is the foundational Supreme Court judgment on the Tenth Schedule. A five-judge Constitution Bench upheld the validity of the anti-defection law while simultaneously ruling on its limitations.

Key Holdings: - The Tenth Schedule is constitutionally valid and does not violate the basic structure of the Constitution. - The Speaker/Chairman's decision is quasi-judicial in nature, not purely political. - The clause in Paragraph 7 shielding the presiding officer's decision from judicial review was struck down as unconstitutional (violates separation of powers and judicial review as a basic structure element). - Courts can intervene after the presiding officer issues a final order; courts cannot intervene during pending proceedings except in cases of constitutional violations. - Time limit: Proceedings should be decided within a reasonable time.

Connection to this news: Any decision the Rajya Sabha Chairman takes on this petition can be challenged before the Supreme Court, following the Kihoto Hollohan precedent.

Key Facts & Data

Tenth Schedule inserted by: 52nd Constitutional Amendment Act, 1985
Articles invoked: 102(2) for MPs, 191(2) for MLAs
Adjudicating authority (Rajya Sabha): Chairman of Rajya Sabha (Vice-President of India)
Merger threshold: Two-thirds of the members of the legislative party (raised from one-third by 91st Constitutional Amendment Act, 2003)
Kihoto Hollohan v. Zachillhu (1992): Upheld the Tenth Schedule; made presiding officer's decision subject to judicial review
Reasonable time for deciding petition: Approximately three months (per Supreme Court guidelines)
Paragraph 5: Speaker/Deputy Speaker/Chairman exempt from disqualification when they give up party membership upon assuming office
Paragraph 6: Presiding officer is the sole adjudicating authority
Paragraph 7 (original): Barred judicial review — struck down in Kihoto Hollohan (1992)
91st Amendment (2003): Changed merger threshold from one-third to two-thirds; also capped the size of the Council of Ministers at 15% of the lower house strength (Articles 75(1A) and 164(1A))