Skip to Content

Raghav Chadha's "Merger" with BJP

A Valid Defence Under the Anti-Defection Law?
27 April 2026 by
Lov Ojha BALLB(Hons) 4th year
| 3 Comments

Introduction

On April 25, 2025, the political landscape in India experienced a substantial shift when Raghav Chadha (a prominent and well-known member of the Aam Aadmi Party [AAP]) announced that he and six other Rajya Sabha members would leave AAP to create a formal "merger" with the Bharatiya Janata Party (BJP). Chadha's legal justification for this action was Paragraph 4 of the Tenth Schedule of India's Constitution, which permits a Member of Parliament who has left their original party to join a new party without facing sanctions for doing so. The immediate political consequences of this change were significant; AAP referred to it as "betrayal," while the BJP stated that it was representative of "the will of the people." However, the more important issue being debated in the Rajya Sabha, at this moment, is whether or not this "merger" is legally valid.

Anti-Defection Law

The Tenth Schedule to the Indian Constitution was added through the Constitution (Fifty-Second Amendment) Act, 1985[1], to combat the rising incidences of political floor crossing and instability due to the "Aaya Ram Gaya Ram" culture that existed in India since the 1960[2]. The Supreme Court of India described defection as a "Constitutional sin," referring to the moral burden the Indian Parliament intended this law to carry[3]. Under paragraph 2 of the Tenth Schedule, disqualification will occur if an MP voluntarily resigns their party affiliation, or votes contrary to their party's direction[4]. Thus, if an MP is elected to a party, they may not trade side this is a clear act of defection. The only provision for an MP to legally exit from their party is through merger.

The Merger Exception

Paragraph 4 of the Tenth Schedule provides that a member shall not be disqualified if their "original political party" merges with another party, and they consent to join the merged entity.[5] The threshold for a valid merger is that not less than two-thirds of the members of the legislature party must agree to it.[6] Chadha's arithmetic, on its face, is correct. Seven out of eleven AAP MPs in the Rajya Sabha above the two-thirds mark announced the merger. But constitutional law is not arithmetic alone.

The Central Legal Problem: Who Initiates the Merger?

Here is where Chadha's defence encounters serious constitutional turbulence.The Tenth Schedule uses the phrase "original political party" a term of significant legal weight. Under Paragraph 1(b), the original political party is defined as the party to which a member belonged at the time of their election.[7] For a merger to be valid under Paragraph 4, the original political party itself not merely a fraction of its legislative wing must initiate and effectuate the merger. AAP's national leadership has done no such thing. Arvind Kejriwal remains National Convener of a fully functioning registered national party.

This point was underscored powerfully by the Supreme Court's Constitution Bench in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023 INSC 516),[8] which arose from the Shiv Sena crisis. The Court held that a legislative party cannot act independently of the political party that gave it birth. To allow a legislative wing to sever itself from its parent organisation, the Court stated, would "defeat the objectives of the Tenth Schedule."[9] 

The Court's observation was categorical:
"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... This is not the system of governance envisaged by the Constitution."[10]
Applied to the present facts, this reasoning is devastating to Chadha's position. What has happened is not a merger of AAP into BJP it is seven legislators abandoning their party and seeking shelter behind the word "merger."

The Goa Precedent

Intellectual honesty requires acknowledging a contradicting authority.In September 2022, eight out of eleven Congress MLAs in the Goa Legislative Assembly announced their merger with the BJP. The Speaker did not disqualify them. The Bombay High Court (Goa Bench) upheld this decision in January 2025, relying on its earlier ruling in a prior Congress-BJP merger in the same state.[11] The petition challenging this decision SLP(c) 5256/25 is currently pending before the Supreme Court.[12]

The Goa High Court effectively held that the two-thirds threshold within the legislature party is, by itself, sufficient to trigger the merger exception. This is the precedent Chadha's lawyers will rely upon most heavily.

AAP has moved quickly in response. MP Sanjay Singh filed a formal disqualification petition before Rajya Sabha Chairman C.P. Radhakrishnan on April 26, 2025, arguing that the seven MPs defected from a party on whose ticket they were elected and that their conduct squarely attracts Paragraph 2 of the Tenth Schedule.[13]

Why Chadha's Defence Likely Fails

1.The original political party has not merged. AAP exists, functions, and has not announced any merger with the BJP. The Explanation to Paragraph 2(1) of the Tenth Schedule makes clear that a member is deemed to belong to the political party by which they were set up as a candidate.[14] That party AAP  is very much alive. The tail cannot wag the dog.

2. Legislative wings cannot act independent of their parent parties.The Subhash Desai Constitution Bench settled this.[15] A legislative party derives its authority and legitimacy from the political party. Allowing a rump group of seven MPs to declare a merger against the explicit opposition of the party organisation  would make the merger exception an open loophole rather than a genuine protection.

3. Parliament consciously removed the "split" defence in 2003.
The 91st Constitutional Amendment Act, 2003 deleted Paragraph 3 of the Tenth Schedule, which previously allowed one-third of a legislature party to split without facing disqualification.[16] The Statement of Objects and Reasons of that amendment expressly noted that the split provision had been "grossly exploited" and was causing political instability.[17] Permitting a legislative minority to manufacture a merger independent of the parent party would, in practical effect, resurrect this abolished defence through the backdoor a result Parliament clearly did not intend.

Relevant Authority & Power of Judicial Review

The Tenth Schedule, Paragraph 6, empowers the Chairman of the Rajya Sabha to adjudicate upon disqualification petitions.[18] His determination will ultimately be subject to judicial review, albeit under narrowly defined grounds of lack of jurisdiction, bad faith or reckless disregard (as detailed in Kihoto Hollohan v. Zachillhu (1992 SCR (1) 686).[19] Accordingly, the Chairman cannot reinstate his judgment upon appeal from the Court; conversely, the Court is precluded from intervening until after the Chairman issues a decision.[20]

Where Does This End?

The Subhash Desai observations, the text of the Tenth Schedule, and the legislative history of the 91st Amendment all weigh against Chadha's position. The Goa High Court judgment offers him a lifeline but one that the Supreme Court has not yet validated and which arguably conflicts with the higher bench's own reasoning in Subhash Desai. The Supreme Court's forthcoming ruling in SLP(c) 5256/25 the Goa MLAs' case will be determinative. Its outcome will either legitimise what Chadha and his colleagues have done, or confirm that India's anti-defection framework cannot be navigated through a legislative sleight of hand.

Concluding 

What Raghav Chadha has done may be politically calculated. Whether it is constitutionally defensible is a question that must be answered by the highest court in the land. The Tenth Schedule was built on a foundational premise: that a legislator's mandate belongs to the party that fielded them, not merely to their individual ambition.If seven MPs can walk out, call it a "merger," and retain their seats then the anti-defection law's promise becomes a polite fiction. The Supreme Court now carries the burden of clarifying whether India's constitutional architecture permits this kind of legislative engineering, or whether it will hold the line that the framers intended.

Reference

[1] Constitution (Fifty-Second Amendment) Act, 1985, inserting the Tenth Schedule into the Constitution of India. See P.M. Bakshi, The Constitution of India 14th ed. (Universal Law Publishing, 2017), p. 412.

[2] The expression "Aaya Ram Gaya Ram" originates from the conduct of Haryana MLA Gaya Lal, who switched parties three times in a single day in 1967. See Subhash C. Kashyap, Anti-Defection Law and Parliamentary Privileges (Shipra Publications, 2003), p. 1.

[3] Harish Chandra Rawat v. Union of India, Writ Petition (Civil) No. 233 of 2016 (Supreme Court of India). The Court characterised defection as a "Constitutional sin" undermining the people's mandate.

[4] Paragraph 2(1)(a), Tenth Schedule, Constitution of India — a member voluntarily giving up membership of their political party incurs disqualification. Paragraph 2(1)(b) covers voting or abstaining contrary to the party whip.

[5] Paragraph 4(1), Tenth Schedule, Constitution of India: "A member of a House shall not be disqualified under paragraph 2 on the ground of his having become a member of another political party if the original political party merges with another political party..."

[6] Paragraph 4(2), Tenth Schedule, Constitution of India: "For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger."

[7] Paragraph 1(b), Tenth Schedule, Constitution of India: "original political party," in relation to a member of a House, means the political party to which he belonged immediately before the last general election.

[8] Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors., 2023 INSC 516, decided by a Constitution Bench of five judges headed by Chief Justice D.Y. Chandrachud on May 11, 2023.

[9] Subhash Desai (supra), para. 119 of the judgment, on the relationship between the legislature party and the political party under the Tenth Schedule.

[10] Subhash Desai (supra), para. 119 — the Court's articulation of the "umbilical cord" metaphor describing the inseparable relationship between the legislative party and the parent political organisation.

[11] Bombay High Court (Goa Bench), judgment upholding the Speaker's decision not to disqualify 8 Congress MLAs who merged with BJP — January 2025, following its earlier decision in the matter of Congress MLA merger in the Twelfth Goa Legislative Assembly.

[12] Special Leave Petition (Civil) No. 5256 of 2025, currently pending before the Supreme Court of India, challenging the Bombay High Court (Goa Bench) decision on the Congress-BJP merger in Goa.

[13] AAP's disqualification petition filed by MP Sanjay Singh before Rajya Sabha Chairman C.P. Radhakrishnan on April 26, 2025, alleging that the seven AAP MPs — Raghav Chadha, Ashok Mittal, Sandeep Pathak, Harbhajan Singh, Rajendra Gupta, Vikram Sahni, and Swati Maliwal — committed defection under Paragraph 2 of the Tenth Schedule. See PTI report, April 26, 2025.

[14] Explanation to Paragraph 2(1), Tenth Schedule, Constitution of India: "For the purposes of this sub-paragraph, an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member."

[15] Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 INSC 516 — the Constitution Bench's holding that the decision of a Speaker in recognising a whip appointed by a breakaway legislative faction, as opposed to the original political party, was illegal.

[16] Constitution (Ninety-First Amendment) Act, 2003, Section 5: "In the Tenth Schedule to the Constitution, Paragraph 3 shall be omitted." Notified in the Gazette of India on January 2, 2004; brought into force on July 7, 2004.

[17] Statement of Objects and Reasons, Constitution (Ninety-First Amendment) Act, 2003 — Parliament noted that "the provision for exemption from disqualification in case of splits as provided in Paragraph 3 of the Tenth Schedule has, in particular, come under severe criticism on account of its destabilising effect on the Government."

[18] Paragraph 6(1), Tenth Schedule, Constitution of India: "If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final."

[19] Kihoto Hollohan v. Zachillhu and Others, 1992 SCR (1) 686 — a 3:2 Constitution Bench decision upholding the constitutional validity of the Tenth Schedule. The Court struck down Paragraph 7, which had excluded judicial review, as unconstitutional for lack of state ratification under the proviso to Article 368(2), while affirming that the Speaker's decisions under the Schedule are subject to judicial review on grounds of jurisdictional error, mala fides, or perversity.

[20] Kihoto Hollohan (supra) — the Court clarified that judicial review is available only after the Speaker/Chairman renders a decision, and courts must refrain from interference at the pre-decision stage except in extraordinary circumstances.

Lov Ojha BALLB(Hons) 4th year 27 April 2026
Share this post
Category
Blogs
Sign in to leave a comment