Anti-Defection Law Won't Apply to AAP MPs Merging with BJP, Say Legal Experts

Legal experts highlighted the Tenth Schedule's inability to stop political defections when they acquire the scale of "merger" and said joining of BJP by seven AAP Rajya Sabha MPs led by Raghav Chadha would not fall foul of the anti-defection law, which approves two-thirds of a legislature party to break away and merge with another party.

Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul and Maninder Singh said Section 4(2) of the Tenth Schedule provided that the penalty of disqualification may not arise if two-thirds of the strength of a legislature party in a House approves breaking away from the party on whose ticket they got elected and merged with another party.

Senior advocate A M Singhvi, who as lead advocate in matters where he had opposed and supported such political decisions in SC, said, "The Tenth Schedule says that (i) one political party must merge with another and (ii) two-thirds members of the legislature party must agree to the said merger. SC held that the legislature party and political party cannot be conflated as they are separate entities. Accordingly, mere merger of legislature parties is not sufficient."

AAP had 10 MPs in RS and seven would constitute two-third of its legislature party in the House. However, he said that what is more material is that arbiter of such disputes happens to be the presiding officer/Speaker of a House who owes his position to the ruling dispensation, which makes it difficult to get such MPs/MLAs disqualified under provisions of anti-defection law.

"I have said so many times over last decade that Tenth Schedule is a sterile part of Constitution, which should be repealed and substituted by two lines: Any MP/MLA who defects from the party from which he got elected to House shall cease to be a member of House and must seek re-election," Singhvi said.

Kaul said, "If two-thirds of members of a legislature party approve that a merger has happened of the party, then the merger is deemed to have happened and, therefore, it is a valid defence by them to avoid disqualification in the House."

He said in Shiv Sena case, SC had accepted that Section 4(2) of Tenth Schedule was a valid defence in disqualification proceedings.

Rohatgi and Singh said a legislature party was relatable to the House concerned. "If two-thirds of total members of a party in RS decide to merge with another party, it shall be considered a valid merger and will not invite disqualification under the anti-defection law."

In April 2003, an amendment to the Tenth Schedule had barred the earlier prevalent defections arising from splits in the party.