Will AAP Rajya Sabha MPs face disqualification after joining BJP? Explained

However, according to former Lok Sabha secretary general PDT Achary, the AAP has members in various legislatures, not just Rajya Sabha. He pointed to paragraph 4 of the 10th Schedule — inserted in the Constitution by the 52nd Constitutional Amendment Act 1985 and strengthened by the 91st Constitutional Amendment Act 2003 — which says: “A member of a House shall not be disqualified… where his original political party merges with another political party and he claims that he and any other members of his original political party have become members of such other political party or, as the case may be, of a new political party formed by such merger”. 

Achary told The Indian Express that, in his opinion, this would mean that Arvind Kejriwal should himself be willing to merge with the BJP. He added that any member can now file a disqualification petition with the Rajya Sabha Chairman — who would either approve the “merger” as more than two-thirds of the AAP members have shifted, or disqualify the seven AAP members. This decision, Achary said, can then be challenged before court.

When Shiv Sena and NCP members split the party to join the NDA, the Election Commission (EC) granted the original party symbols to the breakaway factions, citing legislative majority, a ruling Achary believes goes against paragraph 4 of the 10th Schedule.

Rajya Sabha composition

Achary said that since Chadha has reportedly said that he has merged with the BJP, there are no factions of the AAP for the EC to take a call on. But until the Chairman’s ruling, the seven MPs who jumped ship will officially remain AAP members. Achary pointed to paragraph 2 (1) (a) of the 10th Schedule: “An elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.”

However, if they support the NDA on any legislative issue in the pendency of the Chairman’s ruling, their seven votes would be added to the BJP’s tally of 106, despite them technically belonging to AAP. The NDA’s effective tally of votes on an issue — different from its technical strength in the Upper House — will now be 148. And if the Chairman rules that this is a merger, the BJP’s seat tally will go up to 113.

This will also be an anomaly that will come up during the pendency of a disqualification petition, says Achary. According to the 10th Schedule, defying the party whip, too, attracts a disqualification petition. Achary said: “AAP can still issue a whip to Chadha’s group and they can keep violating it, with the Chairman being the person to take a call on any disqualification petition even on this ground.” 

What if less than two-thirds had switched loyalties?

In that case, the rebels would have been liable for disqualification under the anti-defection law in terms of numbers even in a single legislature. The process would have entailed any member of the House petitioning the Rajya Sabha Chairman to disqualify the rebel members for having switched sides. 

The 10th Schedule, however, does not lay down any time limit for the presiding officer of a House to rule on the disqualification of a member for either switching over or defying the party whip. 

Judicial review of the presiding officer’s ruling also takes place only after he has given his ruling — something that can make a presiding officer sit on a petition so that a member liable to be disqualified still retains the membership of the House. This is despite the Supreme Court having observed that presiding officers should decide a petition within a reasonable time.

What does anti-defection law say?

The 91st Constitutional Amendment Act of 2003 did two things. 

First, it said that to avoid disqualification proceedings, at least two-thirds of the members of a party in a House had to switch over to another party, something that would be seen as a merger. If the numbers were below two-thirds of that party’s strength of the House, the shifting members would be liable to face disqualification proceedings. 

Second, the Act laid down that the total number of ministers in a government would not exceed 15% of the total strength of Lok Sabha or state Assembly, adding that the number would not be less than 12 in very small states. 

This Act strengthened the 10th Schedule as it stood after the 52nd Constitutional Amendment Act 1985 which inserted the above Schedule. However, the 10th Schedule in 1985 recognised a split of one-third of the members of a party in a House as legitimate. As this, too, was misused many times, the 91st Constitutional Amendment Act made switching over more difficult by deleting the one-third reference from the 10th Schedule, and mandating that two-thirds had to switch for a merger that would save them from disqualification proceedings.

Why was the anti-defection law enacted in the first place?
This was deemed necessary because of large-scale defections in the 1960s and 1970s. The phrase Aaya Ram Gaya Ram acquired currency in the late 1960s to describe the frequent changing of parties. As per PRS Legislative Research, “A Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.”
As per an article by Ritvik Jain published by International Journal for Legal Research and Analysis, “Between the fourth and the fifth general elections in 1967 and 1972 from among the 4,000 odd members of the Lok Sabha and the Legislative Assemblies in the States and the Union Territories, there were nearly 2,000 cases of defection and counter-defection. By the end of March 1971 approximately 50% of the legislators had changed their party affiliations and several of them did so more than once-some of them as many as five times.”

What are the flipsides of the anti-defection law?
The provisions against defection aimed at preventing horse-trading have bound members of the legislatures firmly to their party line. For, they can face disqualification even for defying the party whip on a matter. This means that individual members lose agency as representatives of their constituency or their state, and become completely subservient to the decisions of the party leadership, leading to centralisation of political parties.