Experts say anti-defection law will not apply to AAP MPs

NEW DELHI: Prominent legal experts have stressed that the Tenth Schedule cannot prevent political defections while getting ‘merger’ scale and said the joining of seven BJP MPs led by Raghav Chadha to the BJP will not violate the anti-defection law, which allows two-thirds of a party in the legislature to break away and merge with another party.Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul and Maninder Singh said Section 4(2) of the Tenth Schedule provides that there will be no penalty of disqualification if two-thirds of the members of a political party in the House of Representatives approve to break away from the party from which they were elected and merge with another party.Senior advocate AM Singhvi, a leading advocate in the SC for matters opposing and supporting such political decisions, said, “The Tenth Schedule provides that (i) a political party must merge with another political party and (ii) two-thirds of the members of the party in the legislature must agree to the said merger. The SC held that the legislative party and political parties cannot be conflated as they are separate entities. Therefore, mere merger of legislative bodies is not enough.“AAP has 10 MPs in RS, seven of whom will account for two-thirds of its seats in the House of Representatives legislative body.However, more importantly, he said, the arbiter of such disputes happens to be the Speaker/Speaker of the House of Representatives and his position is determined by the award of immunity, which makes it difficult to disqualify these MPs/MLAs under the provisions of the anti-defection law.“I have said many times over the last decade that the Tenth Schedule is a lifeless part of the Constitution and should be scrapped and replaced with two lines: Any MP/Member of Parliament who defectes from the party from which he was elected to the House shall cease to be a member of the House and must seek re-election,” Singhvi said.“If two-thirds of the members of a party in the Legislature approve the merger, the merger is deemed to have occurred and, therefore, they can effectively defend it to avoid disqualification in the House,” Kaul said. He said that in the Shiv Sena case, the SC had accepted Section 4(2) of Schedule 10 as a valid defense in the disqualification proceedings.Rohatgi and Singh said the legislative parties were linked to the relevant Houses. “If two-thirds of the members of the RS party decide to merge with another party, it shall be deemed to be a valid merger and shall not be disqualified under the anti-defection law.” In April 2003, an amendment to the Tenth Schedule prohibited defections that had been prevalent in the early days due to intra-party splits.