Merger or Manipulation claims? The 2/3 Rule under the scanner
On 24th April, 2026 three Members of Rajya Sabha belonging to Aam Aadmi Party (AAP), in a Press Conference announced that seven out of ten Rajya Sabha Members have decided to merge with Bhartiya Janta Party (BJP). It is also announced that documents to that effect were submitted with the Chairman Rajya Sabha in the morning.
This has triggered serious debate about the interpretation of 10th Schedule of the Constitution
of India. Since by virtue of Constitution (52nd Amendment) Act, 1985, 10th Schedule (also known as Anti Defection Law) was added to the Constitution of India and was intended to stop elected MPs/ MLAs from defecting from one political party to another. Originally Para 3 of the Anti-Defection Law permitted split in a Party in case, 1/3rd Members or more decide to break away from the original party. However, by virtue of Constitution (Ninety First Amendment) Act, 2003, Paragraph 3 was omitted wef January 01, 2004.
In order to understand the intent of the Legislature, it is important to know some of the important provisions of the 10th Schedule.
PARAGRAPH1(a) defines “HOUSE” which means either House of Parliament…
1(b) “Legislature Party in relation to a Member of a House belonging to any political party in accordance with provisions of Para 2 or Para 4 means “the Group consisting of all the member of that house for the time being belonging to that party.
PARAGRAPH 2 provides for disqualification on the ground of defection.
PARAGRAPH 4 provides for disqualification on the ground of defection not to apply in case of merger.
It provides that (1)(a) A Member of a house shall not be disqualified under sub-paragraph (1) of Paragraph 2, where his original Political Party merges with another Political Party and he clean that he and other members of the original political party have become member of such other Political Party…
(b) have not accepted the merger and opted to function as a separate group…
The definitions of “HOUSE”, “LEGISLATURE PARTY “are of great significance for the purpose of deciding the constitutionality/ validity of the merger of seven MPs. of Rajya Sabha with BJP.
The object of the Legislature of adding Tenth Schedule to prevent defection of elected Representatives from the party from whose strength the elected Representative wins the election. Though by virtue of (now omitted) Paragraph 3, a small window of split in Party was permitted. However, by virtue of Constitution (Ninety First Amendment) in the year 2003, this provision was made more stringent and “split” in party was no more a ground for escaping disqualification.
According to Para 4 of the Tenth Schedule, in order to avoid disqualification on the ground of defection, a political party (end-block) can merge with another political party and gives up its status/ symbol etc. … Sub-Para 2of Para 4 further provides that “the merger of the original party” of a Member of a House shall deem to have taken place if, and only if, not less than 2/3rd of the Members of the Legislature Party concerned had agreed to such merger.
This particular sub-para acquires great significant as it suggests that it will be merger of “the Original Political Party of a Member of a House.”, thus it implies that it will be merger of Original Political Party. This Sub-Para 2 would ultimately be the issue for interpretation.
Apart from others, a question of significance is the verification of claims/ documents submitted by the MPs with the Chairman of Rajya Sabha (who acts as quasi-judicial tribunal). Three Members held Press Conference and disclose that seven Members have broken up from AAP and documents to that effect have been given to the Chairman in the morning. After the Press conference not all the seven MPs went to the office of BJP for joining. One MP is supposed to be abroad for treatment.
As per the law laid down by the Supreme Court of India in the matter of K Biren Singh(2022) 2 SCC 759, the quasi-judicial tribunal is required to follow the principal of natural justice for deciding the claim.
To what extent verification of the claims were done and to what extent the principals of natural justice were followed, may have to be considered by the quasi-judicial tribunal. Though, Paragraph 7 of the Tenth Schedule bars the jurisdiction of any Court in respect of any matter connected with the disqualification of a Member of a House under the Schedule.
However, in a recent judgment, in the matter of Subhash Desai Vs State of Maharashtra (2024) Vol.II Pg. 719, the Supreme Court has ruled that “Court should normally refrain from deciding disqualification petition at the first instance” … “The question of disqualification ought to be adjudicated by the Constitutional Authority”.
However, in peculiar facts and circumstances, such as, (i)failure of the quasi-judicial tribunal to decide the question of disqualification in the time bound manner. (ii) The quasi-judicial tribunal decided the issue of whether there was a split in the party without deciding whether the elected representative in question is disqualified. (iii) The necessity of expeditious decision in view of the fact that in case, the disqualification petition is not decided expeditiously, then, the same would become infructuous.
Every case has its own peculiar facts and circumstances. It is to be seen, as to on the present facts and circumstances, ultimately, how the expressions “House”, “Legislature Party”, “the Original Political Party”, the procedure for verification of claims by the quasi-judicial tribunal would be interpreted/ dealt with. Particularly, in view of the fact that without deciding the petition seeking disqualification, the Chairman Rajya Sabha (who is also quasi-judicial tribunal) has accepted/ allowed the merger of seven MPs in BJP.
