Rajya Sabha defections, constitutional questions

The latest developments within the Aam Aadmi Party (AAP) seem to have dealt a decisive blow to its representation in the Rajya Sabha. On 24 April 2026, seven out of 10 incumbent Members of Parliament publicly announced that more than two-thirds of the party’s MPs had decided to merge with the Bharatiya Janata Party (BJP), citing the provisions of the 10th Schedule of the Constitution.

While this development has attracted widespread political attention, its implications extend beyond immediate partisan concerns. This raises important constitutional questions regarding the interpretation of anti-defection legislation, particularly the scope of the “merger” exception under the 10th Schedule. The episode isn’t entirely unprecedented, either. Similar assertions of legislative power have been witnessed at the State level, particularly in the case of the Eknath Shinde-led faction in the Shiv Sena within the Maharashtra Assembly. But the present example assumes greater significance as it unfolds at the national level by involving MPs in the Rajya Sabha, thus reinforcing its constitutional and political ramifications.

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Anti-defection framework, ‘schism’ doctrine

The Constitution, first adopted in 1950, provided for the disqualification of MPs on limited grounds under Article 103, to be decided by the President of India upon the opinion of the Election Commission of India. The 10th Schedule, introduced by the 52nd Constitutional Amendment Act 1985, extended this framework to address the ongoing problem of political secession, adding another ground for disqualification of members to be decided by the Speaker or the President. The aim was to prevent the practice of elected representatives leaving their parties for political gain, with the consequence of disqualification.

At the same time, the Schedule initially provided for two exceptions: “demerger” in Paragraph 3 and “merger” in Paragraph 4. The first, which recognized division in a legislative assembly party with one-third of its members forming a separate faction, was later deleted by the 91st Constitution Amendment Act, 2003, on the recommendations of the Electoral Reforms (Dinesh Goswami Committee) and the 170th Law Commission in May 1990. Report, 1999. This deletion marked a conscious move away from accepting internal fissures within legislature parties as a legitimate defense of secession.

The omission of paragraph 3 has deeper implications. The concept of “division” implicitly recognized a degree of autonomy of the party in the legislature vis-à-vis the political party. Its removal signals the Parliament’s clear intention to prioritize the political party as the central unit of democratic accountability.

The Supreme Court of India also strengthened this position in Subhash Desai vs Chief Secretary to the Governor of Maharashtra (2023); here the Constitutional Court refused to interpret the 10th Schedule in a way that would cut the metaphorical umbilical cord between the legislature party and its parent political party. The court underlined that the political party continues to direct and control the actions of its elected members even after the election victory.

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The merger exception in question

The present debate centers on the interpretation of paragraph 4 of the 10th Amendment, which provides immunity from disqualification in merger cases. The key question is whether such a merger can only be achieved by two-thirds of the members of a party in the legislature, or whether it must necessarily follow or reflect the decision of the principal political party itself.

A simple reading of paragraph 4 shows that the exemption applies where the “original political party” merges with another political party. The emphasis is therefore on unification of the political party and not merely numerical cohesion within the party in the legislature. Therefore, Paragraph 4(2), which introduces a presumptive fiction based on the consent of two-thirds of the legislators, cannot be read in isolation as eliminating the primacy of the political organization. Doing so would reverse the constitutional design and allow the legislature to effectively determine the fate of the political party.

This interpretation would be inconsistent with Parliament’s decision to use constituent power to eliminate the “division” exception that had previously allowed even a third to claim legitimacy. The threshold may have changed, but the principle that internal opposition within a party in the legislature cannot override the identity and continuity of a political party remains valid.

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Beyond technical details

At a broader level, the aim of anti-defection legislation was not only to regulate individual behavior but also to protect the integrity of the party system and, by extension, the institution of ‘opposition’ in democracy. Although it does not completely ban political arrangements, it subjects them to constitutional discipline.

AAP’s latest incident underscores the need for judicial clarity on whether the legislative majority can actually adopt the identity of the political party they have been elected to represent. The answer will have far-reaching consequences for parliamentary democracy.

As lyricist and former parliamentarian Javed Akhtar once observed in the Rajya Sabha, the key distinction between democracy and dictatorship lies in the presence of an opposition. It is this opposition that the 10th Program seeks to protect. AAP approached the Rajya Sabha Chairman under Paragraph 6 of the 10th Schedule to challenge the action of the seven “merged” MPs.

How the merger exception is ultimately interpreted will be important, particularly for the continued vitality of the Opposition. In the absence of established legal clarity, the matter is likely to be subject to authoritative decision by the Supreme Court sooner or later. Ultimately, the hope is that the constitutional provision will preserve the centrality of political parties within India’s parliamentary framework.

Vanshaj Azad is an Advocate and currently working as a Law Clerk and Research Assistant in the Supreme Court of India.

It was published – 27 May 2026 12:52 IST