Seven Aam Aadmi Party (AAP) members of the Rajya Sabha have, as a group, resigned from the party and applied to the Chairman of the Rajya Sabha for recognition of their “merger” with the Bharatiya Janata Party (BJP). The Chairman has, reportedly, accepted the merger application over AAP’s objections.
The critical question is whether this exercise is constitutionally and legally unimpeachable under the Tenth Schedule to the Constitution of India.
The Tenth Schedule, inserted by the Constitution (Fifty-Second Amendment) Act, 1985, governs disqualification on grounds of defection. The relevant provision is Paragraph 4, which reads:
‘4. Disqualification on ground of defection not to apply in case of merger.— (1) A member of a House shall not be disqualified under paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party— (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; and (b) such merger has been effected by not less than two-thirds of the members of the legislature party concerned.’
Paragraph 4(2) further clarifies that a merger is deemed to have taken place only when not less than two-thirds of the members of the legislature party of the original political party have agreed to such merger.
AAP currently has ten members in the Rajya Sabha. Seven members have claimed merger. Two-thirds of ten is 6.67, rounded up to seven. On a bare numerical reading, seven out of ten satisfies the two-thirds threshold.
However, the operative phrase in Paragraph 4(2) is “members of the legislature party concerned” - meaning the legislature party in that particular House. If AAP’s Rajya Sabha strength is indeed ten, seven constitutes exactly two-thirds and the threshold is met. The Chairman appears to have proceeded on this basis.
Three issues cloud the picture.
First, Paragraph 4 speaks of a merger of “the original political party” - not merely its legislature party wing - with another party. A genuine merger contemplates a union of political organisations at the organisational level, not merely a bloc migration of legislators. Seven MPs decamping to BJP while AAP as a party continues to exist robustly in Delhi and Punjab is not, by any credible definition, a “merger of parties.” It is defection dressed in merger clothing.
Second, the original Paragraph 3 of the Tenth Schedule - which permitted a “split” on one-third strength - was deleted by the Constitution (Ninety-First Amendment) Act, 2003, precisely to curb legislative horse-trading. Parliament’s deliberate erasure of the split exception signals that narrow numerical compliance alone cannot suffice; substantive organisational merger must accompany it.
Third, AAP as the original party continues to exist and contests elections. The BJP has not merged with AAP or vice-versa. Only seven of AAP’s legislators have “merged.” This is a contradiction in terms. The exception in Paragraph 4 was never designed to facilitate individual or group defection under the guise of merger.
The Supreme Court in Kihoto Hollohan v. Zachillhu (1993) - the foundational Constitution Bench ruling on the Tenth Schedule - held that decisions of the Speaker or Chairman under the Schedule are subject to judicial review, but on limited grounds. The Court observed that judicial review would be available where the decision is “vitiated by any infirmity of a jurisdictional character, or by mala fides, or is in flagrant violation of natural justice.” It is not a full merits review. The Court also held that the Chairman’s decision is final on findings of fact but amenable to correction where constitutional provisions have been misconstrued or jurisdictional error is manifest.
Q: Does the seven-member bloc satisfy the two-thirds threshold under Paragraph 4?
A: Numerically, yes. Seven of ten crosses two-thirds.
Q: Is numerical compliance sufficient for a valid merger?
A: No. Paragraph 4 requires a merger of the original political party itself, not merely its legislature party. AAP continues as a living party. This is defection, not merger.
Q: Can the Chairman’s decision be challenged in court?
A: Yes, but narrowly. Only for jurisdictional error, mala fides, or flagrant violation of natural justice.
Q: What is the likely judicial outcome?
A: A court may well hold that recognising a “merger” while the original party continues unaffected is a jurisdictional error warranting intervention.
The seven have crossed the arithmetic bar. Whether they have crossed the constitutional bar is another matter entirely.
Narasimhan Vijayaraghavan is an advocate practicing before the Madras High Court.