Will Raghav Chadha and six others get disqualified? Know what legal experts say

Raghav Chadha, Swati Maliwal and five other AAP Rajya Sabha MPs said they are merging with the BJP and quitting the party. The move has triggered a sharp legal and political debate over whether they can keep their seats under the anti-defection law. Here's what the law says.

In Short

• Anti-Defection law may not apply due to 2/3 merger rule
• Experts differ on interpretation of 'House' and 'original party'
• Final disqualification decision rests with Rajya Sabha Chairman

The announcement by AAP Rajya Sabha MPs Raghav Chadha, Swati Maliwal and five others has sent shock waves in political corridors. They have announced that seven of 10 Rajya Sabha MPs, the 2/3 majority of the legislature party of the House, have decided to merge with the BJP. Chadha also announced that they are resigning from the membership of the Aam Aadmi Party, causing an immediate political storm.

The AAP has responded with sharp criticism, with Punjab CM Bhagwant Mann calling them "traitors" while fellow parliamentarian Sanjay Singh saying that Chadha "cannot claim to be clean" after he joined the BJP "which has committed the biggest financial scam through electoral bonds".

But the big question is – will the MPs lose their seats in the House?

The Anti-Defection law, defined under Schedule 10 of the Constitution of India, says that a legislator who resigns from party membership would be disqualified. But Clause 4 of the 10th Schedule, which was meant to "protect intra-party dissent" lays down conditions that protect a legislator from being disqualified under the Anti-Defection law.

Disqualification on grounds of defection not to apply in case of merger.—

(1) A member of a House shall not be disqualified under subparagraph (1) of 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; 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 the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger

Sub-Clause 2 specifically creates a 'deeming provision'–that if at least 2/3 members of the legislative party agree to merge, it would legally be counted as "merger of the party" in the House.

Senior Advocate Neeraj Kishan Kaul, who earlier represented Maharashtra leader Eknath Shinde in the Shiv Sena split case, said that this deeming provision would protect the MPs from being disqualified and losing their seat.

"Schedule 10 clause 4(2) says that if 2/3 of the members of the House agree, then the 'party' is deemed to have merged. The merger of the "original political party" is not needed – the Defence against schedule 10 anti-defection is there," said Kaul.

He added that the Shiv Sena case was legally different because these two factions of a party had claimed to be the "original" party.

Senior advocate Sanjay Hegde disagreed with this analysis. He said that while a merger is different from claiming ownership of the party, there are still questions to be considered whether 'House' means one House of Parliament or would it mean the total number in Parliament.

"At the moment, 2/3 of the legislature party, in one house has claimed that they are merging. It could be argued that to escape the anti-defection law you need 2/3 of the total number in Parliament. In my opinion, the anti-defection provisions will be attracted because, unlike MLAs where there is a unicameral legislature and the MLAs can claim to separate and merge, Parliament has two Houses," said Hegde.

Kaul, however, said that since the Constitutional language clearly says "House" and not "legislature". Rajya Sabha and Lok Sabha are separate Houses with separate legislature parties.

Senior Advocate Nizam Pasha has also raised whether the "original party" has to agree to the merger. "My understanding of the law is that they will be disqualified because there is no merger of the original party in this case. Only 2/3 of the Rajya Sabha MPs have merged. They have not claimed to be the 'original political party'," said Pasha.

DOES THIS MEAN THE PARTY HAS SPLIT AND NOW MLAs WILL HAVE TO TAKE SIDES?

Experts said that this is legally a different issue. According to NK Kaul, merger and resignation from the original party is legally different from claiming “ownership” of the party.

"In the Shiv Sena case, the Shinde and the Thackaray faction had both said, 'We are the original Shiv Sena'. That is where the issue of proving whether someone has the majority of the 'original political party' had to be decided. There you need to see who is supported by MLAs, MLCs, Party cadre and office bearers at all levels. In this case, it is not required to be seen what the original party's decision is because 2/3 of the legislature party has decided to merge. They are not claiming ownership of the party identity," said Kaul.

Politically, the resignation of Raghav Chadha and others is a huge jolt for the beleaguered AAP. Experts also said that in case the AAP decides to file disqualification petitions against its rebel MPs, the final decision will be taken by the Chairman of the Rajya Sabha, which is the Vice President of India, CP Radhakrishnan.

LEGAL QUESTIONS STILL EXIST

Whether the 'merger' of the party can happen will only be decided by a group of 2/3rd of the legislature party members or whether the decision has to 'also' involve the 'original political party' is currently pending before the Supreme Court.

While Clause (4) of Schedule 10 includes the 'deeming provision', questions have been raised about how this is to be interpreted. The issue was raised before the Supreme Court in the Goa MLA defection case in 2022 and again in a petition filed by Goa Congress leader Girish Chodankar in 2025, a petition that currently remains pending in the court, with no actual hearing held on the matter after notice was issued.

In the Maharashtra Shiv Sena case, this issue was not debated since the matter was based on very different facts. According to the Chodankar petition, the 'deeming provision' does not automatically protect the MP or MLA if the decision to 'merge' is taken only by the 'legislature party' members. According to this petition, the issue to be considered is how to reconcile Clause 1 and Clause 2, since two High Courts in the country had taken opposing views about the interpretation.

During arguments in 2022, the senior counsel appearing for Chodankar in the Supreme court had argued that the High Court of Haryana in the Kuldeep Bishnoi case had held that the Speaker of the House cannot decide on the validity of the 'merger' before first looking into whether any steps towards a 'merger' had been taken by the original political party. The High Court had held that there is legally "no automatic presumption of merger without collecting evidence of a decision by the original political party."

In contrast, the Bombay High Court in the Goa case has held that the legislature party members have the power to take the decision to merge with another party or split from the original party.

However, since this matter remains pending before the Supreme Court, it maight not have any impact on how the case of the AAP rebel MPs will be seen.

The issue to be debated is whether the deeming provision will kick in only after the 'original political party' or a faction claiming to be the 'original political party' also agrees to the merger.

WHAT IF AAP MOVES DISQUALIFICATION PETITIONS?

At the moment, Raghav Chadha and the others have the constitutional advantage. Since they claim to be 7out of 10 MPs of the party, their resignation from the party will not automatically disqualify them from the seat.

Article 191(2) provides that a person shall be disqualified for being a member of the Legislative Assembly if they are so disqualified under the Tenth Schedule.

Article 190(3) stipulates that if an MLA incurs a disqualification under the provisions of Article 191(2) read with the Tenth Schedule, their seat shall thereupon become vacant: '

"190. [] (3) If a member of a House of the Legislature of a State – (a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 191; or 74 (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant."

In the Shiv Sena case, the five-judge bench of the Supreme Court affirmed that the term 'thereupon' means that "the seat becomes vacant only from such date when the Speaker decides the disqualification petition. An MLA has the right to participate in the proceedings of the House until they are disqualified.

This interpretation had also been given earlier in the Shivraj Chouhan case, where the Court held that even if there are disqualification petitions pending,"MLAs will be reflected in the strength of the House until they are disqualified and will have the right to participate in the proceedings".

Senior advocate Devdatt Kamat said, "The legislature party is not the 'original political party' within the definition required under Schedule 10. In my opinion, the merger of the 2/3 of the legislature party without the merger of the political party cannot be said to be a valid merger under the Tenth Schedule. The issue is pending before the Supreme Court with no final verdict. This issue will have to be decided by the Court at some point.

The AAP can always argue that this is not a valid merger and move a disqualification petition before the Chairman. It's a long haul, but they will have to fight it out.

- Ends