Is Raghav Chaddha's Merger With BJP A Valid Defence Under Anti-Defection Law?

Aam Aadmi Party's Rajya Sabha MP Raghav Chadha dropped a political bomb on Friday afternoon by announcing that he and 6 other AAP RS MPs have merged with the BJP. Saying that 2/3rd of the AAP members in the Rajya Sabha have merged with the BJP, Chadha seemed to suggest that the act will not amount to defection since it will attract the exception in the 10th Schedule of the Constitution.

While Chaddha's move has widespread political ramifications, both for the AAP and for Punjab which is heading for polls next year, it also gives rise to some intricate legal questions, which call for a nuanced understanding. Voluntary giving up of a party membership is certainly a ground for disqualification of a legislator as per Paragraph 2 of the 10th Schedule. So, an MP, who got elected on one party ticket, cannot join another political party, as it would be defection, which was termed a 'Constitutional sin' by the Supreme Court in the Harish Chandra Rawat case.

The joining of another political party is not regarded as defection only if it is done in pursuance of a merger by the original party and the other party. This is the exception provided in Paragraph 4 of the 10th Schedule. As per this sub-paragraph(1) of paragraph 4, a member of the House will not be disqualified if "his original political party merges with another political party”, and he acts as per the merger. If he disagrees with the merger also, he will be protected from disqualification, and he will be entitled to function as a separate group. Sub-paragraph (2) provides the condition for a valid merger - the merger of the “original political party” of a member of a House shall be deemed to have taken place only if not less than “two-thirds of the members of the legislature party” concerned have agreed to such merger.

So, two things are clear from Paragraph 4 :

1. The merger should originate from the “original political party”, and not the legislative party.

2. The merger of the “original political party” and another party will be considered to have taken place only if 2/3d members of the legislative party have accepted such a merger.

Thus, the acceptance by 2/3rd members of the original party is only a condition to make the merger - which originated in the original political party - effective. So, for a merger to take place between AAP and the BJP, the original political party, the AAP national party, through its party national head, should announce such a merger, and if 2/3rds of the AAP legislators (across all legislative houses) accept such merger, then it will take effect. Otherwise, it will be a situation of tail wagging the dog, with a handful of legislators in a house hijacking the party by announcing a merger with another party.

This understanding is supported by the observations made by the Supreme Court's Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra(2023), which dealt with the issues arising out of the factionalism between Eknath Shinde and Uddhav Thackeray in the Shiv Sena party. To be sure, it was not a case of merger. It was a case where the Shinde faction claimed that they were the original Shiv Sena party, and appointed their own whip, replacing the whip appointed by Thackeray. The Supreme Court, while declaring the appointment of party whip by Shinde group as illegal, observed that a legislative party cannot act independent from the political party. To allow the legislative party to disconnect from its original political party will defeat the objectives of the tenth schedule, the Court stated. The relevant observations are quoted below :

​​“When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognize that the power to appoint a Whip vests with the political party.

To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party. This is not the system of governance that is envisaged by the Constitution. In fact, the Tenth Schedule guards against precisely this outcome.”

While holding that 'political party' cannot be conflated with 'legislative party', the judgment further stated :

"The Tenth Schedule would become unworkable if the term 'political party' is read as the 'legislature party.' A clear demarcation is made between political party and legislature party for the purpose of a merger under Paragraph 4, which stipulates that two-thirds of the members of the legislature party must have agreed to a merger of the original political party before such a merger can be deemed to have taken place. To read the term 'political party' as 'legislature party' would be contrary to the plain language of the Tenth Schedule;"

This observation make it clear that the merger must take place in the original political party, and the support of the 2/3rds of the legislative party is a condition to give effect to it.

The judgment also observed that "legislative majority” cannot be the proper test to determine which faction is the real party(Para 151 of the judgment).

Going by this understanding, it would follow that a legislative party cannot unilaterally announce a merger, and thereby seek to escape the consequences of defection. This understanding is also in line with the spirit and the objective of the Tenth Schedule.

But, there is a twist. There is a judgment of the Bombay High Court(Goa Bench) which complicates the understanding.

In 2019, 10 out of 15 Congress MLAs of the Goa Assembly announced that they had merged with the BJP. The Goa Congress President, Girish Chodankar, sought their disqualification under the Tenth Schedule. The Speaker rejected the disqualification petition, holding that there was a valid merger. He challenged the Speaker's decision in the Bombay High Court. In February 2022, the High Court upheld the Speaker's decision, holding that 2/3rd majority of the legislative party is sufficient for a valid merger.

The High Court rejected the petitioner's contention that sub-paragraphs (1) and (2) of paragraph 4 must be read together. The High Court held that both sub-paragraphs are to be read disjunctively. The High Court opined that otherwise the tenth schedule would become unworkable, because, adopting the GPCC President's argument would mean that even if two national parties have agreed to merge, some legislators can block it. The High Court however lost sight of the fact that the legislators who oppose the merger are entitled to sit as a separate group. By taking para 4(2) in an isolated and textual manner, the High Court held that 2/3rds of the legislative party can merge, though there is no approval from the original party for such merger.

According to this author's view, the High Court's interpretation is not in consonance with the letter and the spirit of the tenth schedule, and ought to be reversed. The High Court's view will allow a legislative wing to disconnect from the original party - something which was held to be contrary to the Tenth Schedule by the Supreme Court in Subhash Desai 

The High Court's decision was challenged in the Supreme Court. The Supreme Court did not find it necessary to hear the matter urgently, since the issue became academic as the Goa assembly's term came to an end in 2022. A repeat of the Congress MLAs' merger happened in the new assembly constituted after the 2022 elections. In September 2022, 8 out of the 11 Congress MLAs in the assembly announced their merger with the BJP. The Speaker did not disqualify them. In January 2025, the Bombay High Court Goa Bench, following its earlier decision in the previous merger of Congress MLAs, upheld the Speaker's decision. The Special Leave Petition challenging this decision is pending in the Supreme Court (SLP(c) 5256/25).

Thus, while the text and the objectives of the tenth schedule, backed by the observations of the Supreme Court in the Subhash Desai judgment, support the view that the 'merger' of Raghav Chadha and others cannot constitute a valid defence under the tenth schedule. On the other hand, there is a judgment of the High Court, which clearly holds that such a merger is valid. Ultimately, the matter will have to be settled by the Supreme Court, and its decision in the Goa MLAs' case will have a crucial bearing on the AAP-BJP merger in the Rajya Sabha.