When Rajya Sabha Chairman CP Radhakrishnan accepted on April 27 that seven Aam Aadmi Party MPs, including Raghav Chadha, had joined the Bharatiya Janata Party (BJP), it triggered an immediate legal debate over whether the move violated the Constitution's anti-defection provisions.
The departures reduced AAP's strength in the Upper House from 10 to three, while pushing the National Democratic Alliance's tally to 148 seats.
AAP senior leader Sanjay Singh swiftly filed a petition before the Rajya Sabha Chairman seeking disqualification of the seven MPs, calling the move a violation of the Tenth Schedule of the Constitution. Punjab Chief Minister Bhagwant Mann is scheduled to meet President Droupadi Murmu on May 5 to demand the MPs' "recall."
What the law says
The Tenth Schedule, introduced through the 52nd Constitutional Amendment in 1985, was designed to curb political defections and ensure legislative stability. Under Paragraph 2(1)(a), a member is liable for disqualification if they voluntarily give up party membership. However, the Schedule carves out a critical exception: if a political party merges with another, legislators who honour that merger cannot be disqualified — provided at least two-thirds of the legislative party agree to the merger.
Paragraph 4 of the Tenth Schedule protects legislators from disqualification when their original political party merges with another, provided at least two-thirds of the legislature party agrees to the merger. Crucially, the protection applies only when the original political party itself merges — not merely when two-thirds of legislators decide to switch sides.
The seven AAP MPs are invoking precisely this exception, claiming they constitute the required two-thirds majority and are therefore immune from disqualification.
The legal challenge
Constitutional experts, however, are not convinced. Former Lok Sabha Secretary General PDT Achary observed that by voluntarily leaving AAP, the MPs had clearly attracted Paragraph 2(1)(a), making them liable for disqualification. The critical question, he noted, was whether the merger exception offered them a credible defence — and his reading suggested it did not.
Senior Supreme Court lawyer and independent Rajya Sabha MP Kapil Sibal was more categorical. "This merger is not possible in law. It is against the Tenth Schedule of the Constitution," he said. Sibal argued that the Schedule is unambiguous: a merger of the legislature party can only follow a merger of the original political party, not precede it.
"First the parties have to merge. After that the question of the fate of MPs comes. If two-thirds MPs of a given party which has merged with another decide to honour the merger, then the legislature party can also merge as the principal party has merged. But it cannot be that two-thirds MPs merge with the BJP without the AAP merging with the BJP at an organisational level through a resolution. This is not the law," Sibal said.
Achary echoed this concern, stressing that the anti-defection law was enacted to prevent political defection — not to provide a constitutional cover for it.
Since AAP continues to exist as a party and has not merged with BJP at an organisational level, legal experts suggest that the merger defence available to the seven MPs remains on shaky constitutional ground. The Rajya Sabha Chairman, as the presiding officer, will have the first word on any disqualification petition — though any ruling is likely to face judicial scrutiny.
In 2022, when Eknath Shinde led a rebellion within the Shiv Sena, the Supreme Court's Constitution Bench said that a legislature party has no independent existence from the political party, the argument now being deployed against the AAP MPs.
The test of 10th schedule
The Tenth Schedule's merger provisions have been tested in India's legislative chambers many times before. After the December 2023 assembly elections, 10 BRS MLAs were accused of defecting to the ruling Congress. The BRS filed disqualification petitions, but the Telangana Assembly Speaker repeatedly delayed a decision, prompting the Supreme Court to intervene. In July 2025, the apex court directed the Speaker to decide the disqualification petitions within three months, and later took up contempt petitions alleging non-compliance.
The Speaker ultimately dismissed all 10 petitions in batches between December 2025 and March 2026, ruling that petitioners had failed to provide concrete documentary evidence of voluntary defection under the Tenth Schedule. The SC subsequently disposed of the contempt petitions after the Speaker had finally ruled on all cases.
In December 2018, days after the TRS swept the Telangana assembly elections, four of Congress's six MLCs defected to the ruling party. Senior Congress leader and Leader of Opposition in the Legislative Council Mohammed Ali Shabbir moved the Hyderabad High Court, seeking to declare the merger illegal. The Chairman, however, allowed the merger — stripping Congress of its opposition status in the Council.
Congress again moved the Telangana High Court, contending the merger was illegal and contrary to the Tenth Schedule — arguments that find a striking echo in what AAP and its legal supporters are now saying about the Rajya Sabha defections.
In March 2016, the Telangana Speaker approved the merger of the TDP Legislature Party into the ruling TRS after 12 of its 15 MLAs (80%) defected. This action utilized the two-thirds rule of the Anti-Defection Law to recognize the shift as a legal merger, effectively exempting the defectors from disqualification.
In 2020, the Supreme Court had recommended that matters of disqualification under the 10th schedule should be decided by an impartial tribunal instead of the Speaker.
The case has reignited debate over whether a Speaker aligned with the ruling party can ever be a credible adjudicator of defection disputes — a question that now hangs equally over the AAP MPs' case before the Rajya Sabha Chairman.
The article was written by a student interning with TNM.