AAP Rajya Sabha MPs' Merger with BJP: Anti-Defection Law and the Merger Test
Seven of the Aam Aadmi Party's (AAP) ten Rajya Sabha members announced their decision to merge with the Bharatiya Janata Party on 24 April 2026.
The departing MPs comprise exactly two-thirds of AAP's Rajya Sabha strength of ten, which is the minimum constitutional threshold required to claim a valid party merger under the Tenth Schedule.
The parent party declared the move unconstitutional and announced it would petition the Rajya Sabha Chairman seeking disqualification of all seven members.
Legal experts are divided: those supporting the merger argument say the numerical threshold is met; critics argue that no corresponding merger of the original party organisation has taken place, which is a constitutional prerequisite.
The Tenth Schedule: Anti-Defection Provisions
The Tenth Schedule was inserted into the Constitution by the Constitution (52nd Amendment) Act, 1985 to curb political defections. A member of Parliament or a state legislature can be disqualified if they voluntarily give up the membership of their party, or if they vote or abstain from voting contrary to the direction issued by their party without prior permission.
The entire legal dispute in the AAP-BJP case hinges on whether the seven MPs' joint declaration of merger qualifies under Paragraph 4 of the Tenth Schedule, or whether it is merely dressed-up defection.
The Merger Exception: Paragraph 4 of the Tenth Schedule
Paragraph 4 provides that a member shall not be disqualified if their original political party merges with another party, and at least two-thirds of the members of the legislature party have agreed to the merger. The Supreme Court has interpreted "merger" strictly: the merging entity must be the original political party, not just its legislature wing.
Even though the numerical two-thirds test is met, the original party contests that no merger of the party organisation has occurred. The Chairman will need to adjudicate whether a legislative wing merger without an organisational merger satisfies Paragraph 4.
Rajya Sabha: Composition and Constitutional Role
Rajya Sabha is the upper house (Council of States) of India's bicameral Parliament. Unlike Lok Sabha, members are not directly elected by the people but are elected by the elected members of State Legislative Assemblies using a system of proportional representation by means of single transferable vote.
Party composition in the Rajya Sabha is critical for passing legislation (including Constitutional Amendment Bills requiring special majority). The merger of seven members changes the numerical balance in the upper house.
Kihoto Hollohan v. Zachillhu (1992): Judicial Review of Merger Decisions
The Supreme Court's 1992 constitution bench judgment upheld judicial review of Speaker/Chairman decisions on disqualification. While the presiding officer has primacy in the first instance, their decisions are subject to review by High Courts and the Supreme Court for constitutional compliance.
If the Rajya Sabha Chairman accepts the merger claim, the parent party may challenge the decision in the Supreme Court, making Kihoto Hollohan the operating framework for judicial review.
- AAP's total Rajya Sabha strength (before the split): 10 MPs
- MPs merging with BJP: 7 (including Raghav Chadha, Sandeep Pathak, Ashok Mittal, Harbhajan Singh, Rajinder Gupta, Vikram Sahney, Swati Maliwal)
- MPs remaining with AAP: 3
- Two-thirds threshold: Minimum 7 out of 10 — exactly met in this case
- Relevant constitutional provision: Paragraph 4, Tenth Schedule (merger exception)
- Disqualification authority in Rajya Sabha: Chairman of the Rajya Sabha
- Landmark precedent: Kihoto Hollohan v. Zachillhu, 1992
- 91st Constitutional Amendment Act, 2003 — deleted split exception, raised merger bar to two-thirds
- BJP's Rajya Sabha strength increases with the merger; NDA's position in the upper house is strengthened