Mandate hijacked: The constitutional sin of the seven AAP defectors

On April 6, 2026, eighteen days before he led seven Aam Aadmi Party (AAP) Rajya Sabha MPs into the Bharatiya Janata Party, Raghav Chadha posted photographs on Instagram. He sat in a garden reading Robert Greene’s The 48 Laws of Power. “Somebody gifted me a book this week,” he wrote. “Funny how timing works.” He had turned to Law 1: “Never Outshine the Master.” 

Only days earlier, AAP had stripped Chadha of his Deputy Leader post in the Rajya Sabha, handing the role to Ashok Mittal. Paradoxically, Mittal would join the BJP less than three weeks after Chadha.

On April 24, Chadha spoke at the Constitution Club in New Delhi and announced that two-thirds of AAP’s Rajya Sabha legislature party had exercised “the provisions of the Constitution of India” to merge with the BJP. The language was constitutional. The act was its opposite. He dressed a power play in the vocabulary of Paragraph 4 of the Tenth Schedule and dared the institutions to tell the difference. On April 27, Rajya Sabha Chairman C.P. Radhakrishnan obliged: the merger was approved, all seven are now listed as BJP members, and AAP’s Rajya Sabha strength stands at three. What follows is a close reading of why the Chairman and Raghav Chadha are wrong in the Constitutional schema.

The law doesn't support Chadha’s claim

In Kihoto Hollohan, SR Bommai, and Kuldip Nayar, Constitution Benches of the Supreme Court recognised that political parties are central to Indian democracy and that the Tenth Schedule, introduced by the 52nd Amendment Act in 1985, seeks to curb defections by tethering members to their parties. 

Chadha’s merger claim fails because it conflates the legislature party with the original political party. Chief Justice D.Y. Chandrachud’s unanimous Constitution Bench explained in Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023) why these are distinct concepts. 

The entire claim rests on a confusion between two terms the Constitution deliberately keeps apart: the political party that fields candidates and wins elections, and the legislature party, which is simply the group of MPs that party represents in the Parliament.

AAP is the political party that fights elections and wins; its Rajya Sabha members are merely the legislature party. Chadha and the Vice President treated these two as identical, but the Tenth Schedule does not.

Under Paragraph 4, a merger is only valid if the organisation merges first. The requirement for two-thirds of legislators to agree is a secondary condition – it protects members from disqualification, but it cannot create a merger on its own. The political party's merger is the primary event, while the legislators' vote is merely evidence of it. MPs cannot independently claim this exception unless their parent organisation has officially merged.

The Subhash Desai Bench identified five reasons why a legislature party cannot be equated with a political party:

1) Protecting dissent: The law distinguishes between genuine intra-party dissent and actual defection.

2) Organisational break: Legitimacy requires a genuine break within the broader organisation, not just among legislators.

3) Limited role: The legislature party exists only to provide a legal cover for its members, not to act as an independent entity.

4) Statutory identity: Under the Representation of the People Act, only the political party – not a group of MPs – holds legal registration and election symbols.

5) Representative trust: Legislators cannot use a party’s platform to get elected and then abandon that party without owing it any allegiance.

The Bench concluded that this is not the system of governance envisaged by the Constitution, and that the Tenth Schedule guards against precisely this outcome. A group of legislators cannot rely on the political party for the purpose of getting elected, appeal to voters on the basis of their affiliation with that party, and then disconnect themselves entirely from it without owing, in the Bench’s words, even a hint of allegiance.

When measured against this standard, the AAP “merger” evaporates. There has been no leadership resolution, no public organisational acknowledgement, and no merger of the national entity. AAP continues to hold power in Punjab, retains its ‘broom’ symbol, and remains a registered national party with the Election Commission. Since the original political party has not merged, and three AAP members remain in the House, the seven defectors have simply given up their membership, thus triggering disqualification under Paragraph 2(1)(a).

Kapil Sibal, in his press conference on April 25, stated the position precisely: the party must merge first; only then does the question of the fate of MPs arise; two-thirds of the legislature party cannot merge with the BJP without AAP merging at the organisational level through a resolution. That is not the law the Chairman applied.

Punjab’s representational claim

The Rajya Sabha cannot topple a government. The original anti-defection rationale, preventing governments from falling through floor-crossings for personal benefit, applies with reduced force in the Upper House. But the rationale of representational integrity applies with greater force. 

The Rajya Sabha is the Council of States. Article 80 places members there as representatives of the State Legislative Assemblies that elect them – six of the seven hold seats from Punjab. The Punjab Assembly elected them because Punjab voters elected an AAP government with 92 of 117 seats in 2022. These six did not win a direct election. AAP MLAs, who Punjab voters chose on the broom symbol, placed them in the Upper House. To walk those seats across to a party Punjab did not vote for is a violation of the electoral mandate Article 80 encodes. 

Punjab will now have BJP representatives it never chose. The deliberative idea of the Upper House collapses when MPs treat their seats as transferable assets.

How the merger loophole brought back mass defection

In 2003, Parliament repealed the “split” exemption (Paragraph 3) to stop the mass defections it had encouraged. Previously, just one-third of a party could break away without penalty. To further curb horse-trading, Parliament also capped the size of ministries at 15 percent, removing the “lure of office” as a reward for defecting.

By retaining the “merger” exception, Parliament merely shifted mass defections to a new channel. While the threshold rose to two-thirds, the core problem remains: the law punishes individual conscience but protects wholesale desertion.

The 2019 TDP defection created the template. Four of its six Rajya Sabha MPs invoked Paragraph 4 and wrote to the then Chairman Venkaiah Naidu. Naidu took cognisance and updated the rolls without passing a reasoned adjudicatory order. The TDP continued to exist independently and eventually rejoined the NDA in 2024 without challenging it in court.

The precedent this defection set was one of strategic silence rather than legal adjudication. However, Chairman Radhakrishnan was not bound by this past failure to act. As a constitutional tribunal, he was obligated, under the Kihoto and Subhash Desai judgments, to distinguish the political party from its legislators. By ignoring this, he acted as a partisan official, making a judicial review of his decision essential.

Why the courts must step in when the Speaker fails to act

The presiding officer who decides disqualification owes his position to the ruling party’s majority. Lok Sabha Speaker Om Birla owes his chair to the BJP. Vice-President Radhakrishnan was the NDA candidate elected on September 9, 2025, following the resignation of Jagdeep Dhankhar on July 21, 2025. 

The Telangana Speaker’s March 2026 acquittal of ten BRS MLAs who had defected to Congress, on the ground that petitioners failed to provide sufficient documentary evidence of defection, confirms the pattern operates across party lines. Whichever party benefits from defection will find a way to accommodate it through the presiding officer.

This partisan deadlock leaves the Supreme Court as the only authority capable of deciding whether a presiding officer can ratify what the Tenth Schedule’s text refuses to permit.

Anti-defection cannot cure rotten party politics, but it must still be enforced.

The Tenth Schedule was never designed to enforce ideological purity, and coherent ideology has never been a prerequisite for Indian political parties. But the Schedule must enforce the rule that legislators cannot transport their seats across party lines without returning to the electorate.

The seven defections illustrate a deeper pathology. AAP privileged Rajya Sabha seats for financiers like Ashok Mittal, founder of Lovely Professional University, Rajinder Gupta of the Trident group and Vikramjit Singh Sahney, who heads the Sun Foundation. They were brought in as a financing strategy and departed when their financing relationship found a more powerful host in a party whose election account held Rs 10,107 crore as of 2024, seventy-five times the Congress’s balance.

AAP bears responsibility for whom it seated. But that responsibility does not dissolve the constitutional consequences of defection for those it seated. Chadha and the six should have done what any politician with genuine conviction does: resign, contest, and submit to the electorate again. The merger fiction lets them skip that, keep what AAP gave them, and serve a party that did not give it.

Failing the constitutional threshold

The seven defectors met the arithmetic threshold of two-thirds, but they failed the constitutional one. Yet, the Vice-President has approved the merger, while AAP’s disqualification petition has been disregarded. The fight now moves to the Supreme Court, which must decide whether a presiding officer can ratify what the Tenth Schedule’s text, its constitutional history, and a unanimous Constitution Bench’s reasoning all foreclose. 

In our current system, a single act of conscience leads to disqualification, while wholesale desertion is rewarded with official ratification. This creates a bizarre constitutional economy where the more politicians defect at once, the more protection they receive. 

The BJP should register the logic it is perfecting: the device that ratifies AAP’s defectors today is available to ratify its own defectors tomorrow. The law remains rational. The presiding officer did not hold the line.  The Supreme Court must now intervene to close this loophole before the terms of these defectors expire in 2028. Otherwise, the voter's mandate remains a transferable asset for the highest bidder.

Surendra Kumar is an Assistant Professor of Constitutional Law and Philosophy at Ramaiah College of Law, Bengaluru.