Scenario: 2/3rd of AAP's MPs in Rajya Sabha announce merging with the BJP.

Описание: Scenario: 2/3rd of AAP's MPs in Rajya Sabha announce merging with the BJP.

✲ Will they be disqualified? No.
The Tenth Schedule of the Constitution treats this as a "merger," not "defection."

✲ Paragraph 4(1) states: "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... have become members of such other political party."

[Para 4(1) says the original political party must merge.]

✲ But when is a merger considered to have happened?
Paragraph 4(2) answers that: "the merger of the original political party... 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."

[Para 4(2) says not less than 2/3rd of the legislature party must agree.]

✲ What this means for AAP's Rajya Sabha MPs:
• Only Rajya Sabha MPs count. Lok Sabha MPs or MLAs are not included.
• You must cross the 2/3rd mark. If AAP has 10 MPs in Rajya Sabha, at least 7 must agree to the merger. If it has 9 MPs, at least 6 are needed.
• What happens next: The 2/3rd who merge become members of the BJP and are not disqualified. The 1/3rd who remain and "have not accepted the merger and opted to function as a separate group" are also not disqualified.

✲ Shield for the 1/3rd: The law specifically protects the minority who refuse to join the new party. They are essentially "protected stay-behinds"; can't be disqualified for refusing to move. They can continue to function as a separate group in the House. However, they can't claim to be the original party if the 2/3rd have already merged.

✲ Procedure and key details:
• Intimation to Chairman:* The MPs must inform the Rajya Sabha Chairman in writing that they have merged. The Chairman then examines if "not less than two-thirds of the members of the legislature party concerned have agreed."
• No time limit, but Chairman's discretion matters: The Chairman can take time to decide. While deciding, he checks for genuine consent, whether signatures were forced or voluntary. Until he decides, they continue as MPs.
• Effect on party: After merger, AAP's strength in Rajya Sabha reduces. The Election Commission may later decide who gets the party name/symbol if the original party disputes it, but that doesn't affect the MPs' membership in the House.

✲ Two-pronged test: For a merger to be ironclad, para 4 implies a dual requirement where it shows the difference b/w de jure merger and de facto merger.
​• Original political party (the organization) must merge with another party
• Not less than ​2/3rd of the members of the legislature party must agree to the merger.

Note: In practice, if not less than 2/3rd of the MPs move, the Chairman "deems" the merger to have happened u/para 4(2), but this is frequently challenged in court by the parent party's leadership on the ground that the original political party itself never merged, only its legislators defected.

✲ Difference b/w merger and defection:
U/normal defection, even one MP voluntarily giving up membership of the party gets disqualified. After the 91st Amendment in 2003, the "split" provision was removed. Now the only safe route is a merger by 2/3rd of members.

[​"Since the 91st Amendment (2003), the 'split' (where only 1/3rd was needed) is dead. The 2/3rd 'merger' is now the only legal escape hatch left for bulk movement b/w parties."]

✲ Has this happened before?
Yes. In 2019, 4 out of 6 TDP Rajya Sabha MPs merged with the BJP. In 2021, 12 of 17 BSP MLAs in Rajasthan merged with Congress. They were not disqualified because they crossed the 2/3rd threshold.

✲ Judicial review: While the Chairman decides, his decision is subject to judicial review. The Supreme Court, since the Kihoto Hollohan case, Kihoyo Hollohan v. Zachillhu (1992) has the power to review the Chairman's decision if there is "mala fide" intent or a violation of constitutional mandate.

[If 2/3rd of AAP's Rajya Sabha MPs formally announce a merger with the BJP and the Chairman accepts it, they will become BJP MPs. The Anti-Defection Law will not apply to them, and the remaining 1/3rd can continue as a separate group or stay with AAP without disqualification.]