... but not wholesale merge

The Indian media is all agog with a split in the Aam Aadmi Legislature Party in the Rajya Sabha- the Council of States as two-third of its Members, led by Raghav Chaddha and six other members, have merged with the BJP. The Indian Parliament enacted anti- defection law in 1985 by the Fifty Second Constitution Amendment to curve the menace of political corruption as there were reports from early 1960s that many, or probably most, legislators change their political allegiance for pelf of power or monetary gains leading to political instability, eroding the very edifice of democracy.

The 52nd Constitution Amendment which inserted the Tenth Schedule in the Constitution provides that a member of a House belonging to any political party shall be disqualified for being a member of the House, (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person, or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such abstention.

The Fifty Second Amendment, however, created an exception by providing in paragraph 4 of the Tenth Schedule that disqualification on ground of defection, not to apply in case of merger. By laying down that member of a house shall not be disqualified under sub paragraph (1) paragraph 2, where his original party merges with another party and he claims that he and any other members of his original political party (a) have become members of such other political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group and from the time of such merger, such other political party or new political party or group, as a case may be, shall be deemed to be the political party to which he belongs to. The merger was deemed to have taken place if not less than one third of the members of the party concerned have agreed to such merger.

Unfortunately, the loophole of merger or defection by one- third of the members of a party in a legislature, ceased to be a deterrent and it was grossly abused by smaller political parties or groups as it was found quite easier to engineer defection by one- third of the members of a smaller party or group in a legislature. In one typical case, one legislator defected and joined the ruling party and claimed immunity, and which was granted by the Speaker, on the valid ground that there were three members in the original political party in that legislature and he constituted one- third and therefore he could not be disqualified under the anti defection law.

Alarmed by the spate of rampant defections, the Parliament enacted the Ninety -First Constitution Amendment, 2003, in an attempt to make merger more stringent, by providing that split would not incur disqualification under the Tenth Schedule if instead of one-third, two-thirds of the members merge with another political party or form a separate group. The Tenth Schedule to the Constitution also provides the machinery for disqualification of members on grounds of defection and non application of defection in case of merger. If any question arises as to disqualification on ground of defection or any claim related to merger of a political party or formation of a new political party after a split, the question shall be referred to the Chairman or the Speaker of the House, as the case may be, whose decision shall be final except subject to judicial review as per majority opinion by the Supreme Court in Kihoto Hollohon v. Zachillu and others (1992)

The Aam Aadmi Party had ten members in the Rajya Sabha, out of which seven, led by Raghav Chadha, wrote a letter signed by them all to the Chairman Rajya Sabha that they have split and seven of them, constituting two- thirds have merged with the BJP. The Chairman Rajya Sabha- (Vice President of India who is ex officio Chairman, Rajya Sabha) on being satisfied, approved the merger. However, legal luminaries are fiercely divided over the recognition given to the said merger. 

Senior Advocate Kapil Sibal, addressing a press conference, described the merger as "unconstitutional”, as in his view, the anti defection law permits merger only if the party is merged first. In his view, “Anyone cannot simply merge on their own. The Constitution says that first the political party must take a decision at the organizational level, pass a resolution deciding that as a political party, they want to merge with the BJP and only then can it be done”. This appears more of an argument of a lawyer of the party which has split. 

Eminent jurist and Senior Advocate, Abhishek Manu Singhvi expressed his astonishment and criticized the merger as it “lacked two-thirds party’s consent.” In his view, as the Aam Aadmi party did not merge, the group of seven members who merged with the BJP are liable to defection, regardless of the two-thirds numerical support. He also criticized that Chairman, Rajya Sabha for acting in haste by approving the merger and without issuing a reasoned order. He also stated that the decision of the Chairman is subject to judicial review under the Constitution. Singhvi also referred to the judgement of the Constitution bench of the Supreme Court in Subhash Desai v. Principal Secretary, Govt of Maharashtra & Ors., observing that political party and legislature party cannot be conflated.

Per contra, Senior Advocates Mukul Rohatagi, Neeraj Kishan Kaul and Maninder Singh are of the considered view that they would not incur disqualification as the breakaway group constitutes two-thirds majority in the Aam Aadmi Legislature Party in the Rajya Sabha.

Interestingly, Raghav Chadha had earlier in 2022 had described the BJP as a party of “illiterate goons” and had made frontal vocal attack on operation lotus, accusing BJP of thwarting the democratic mandate of the people. Raghav Chadha also introduced a Private Members’ Bill in the Rajya Sabha in August 2022 to amend the Tenth Schedule to the Constitution with the objective of curbing defections and horse trading by raising the required number for a merger from 2/3rd to 3/4 of the party in the legislature, and also proposed a six year election ban on defectors. The laudable objective of the Bill was to prevent nefarious floor crossing by law makers, to prevent rampant misuse of the Tenth Schedule and to uphold the popular mandate.

Had the Bill been enacted, it would have made the impugned merger more rigorous. No Private Members' Bill has been enacted after 1993 in India, but the Bill did underline the vital need for curbing the menace of defections. However, the momentous question is not what allegations were leveled or traded but whether in the context of the two-thirds split in the Aam Aadmi Legislature party and the merger of the group in the BJP attracts disqualification under the Tenth Schedule or the merger is protected by paragraph 4 thereof. 

Defection or horse trading is certainly a blot on our electoral democracy. But constitutional text cannot be confused for political morality. The law makers themselves have provided for protecting the two-
thirds split in the legislature parties of each legislature. Unless, defections are completely proscribed by law, democratic politics demands that the legislators retain certain degree of free volition as an integral part of internal democracy within the political parties lest political parties become the captive of a single leader or of a coterie. 

The Rules framed by both the Houses of Parliament-Disqualification on ground of defection Rules, 1995- clearly lay down the procedure for entertaining petitions for disqualification on ground of
defection and the Chairman or the Speaker, as the case may be, act as high tribunal of Parliament, and every petition thereof is verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. In case of split, the procedure is the Chairman or the Speaker, as the case may be, if satisfied about the bonafide split, free from any manner of coercion and effected in free volition of the members so splitting and forming an indecent party or merging with any party, approves the merger. It is of course another matter that the presiding officers who belong to the ruling party often decide the cases with great alacrity, or delay their decisions inordinately, as may be to the benefit of the ruling dispensation.