Introduction
On 24 April 2026, former Aam Aadmi Party (“AAP”) MP, Raghav Chadha, along with six of his colleagues, announced they were leaving the party to join with the Bharatiya Janata Party (“BJP”), after a prolonged public standoff between former Delhi Chief Minister, Arvind Kejriwal and his erstwhile protege. In announcing this move, Chadha attempted to rationalise it under the merger exception mentioned in the X Schedule.
This blog asserts that the attempt to give legal protection to political defection under the provisions of the X Schedule fails considering the plain text as well as the structure of the X Schedule. Therefore, this blog suggests two amendments to plug this loophole henceforth.
The Architecture of the Claim
Paragraph 4(1) of the X Schedule protects a member from disqualification where “his original political party merges with another political party.” Paragraph 4(2) provides that such a merger “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 a merger.”
Chadha’s claim rests on Paragraph 4(2) with seven AAP Rajya Sabha MPs, constituting more than two-thirds of the Aam Aadmi Party’s strength in that House, agreeing to join the BJP. The merger is therefore, by force of the deeming provision, legally complete. This argument is anchored in the Schedule’s own definition through Paragraph 1(b), which defines “legislature party” as “the group consisting of all the members of that House for the time being belonging to that political party”, a definition that is inherently and deliberately House-specific.
The Punjab and Haryana High Court in Baljit Singh Bhullar and Anr. v. Speaker, Punjab Vidhan Sabha (¶7-10), further recognised that sub-paragraph (2) creates a fiction whereby even absent any national merger, a deemed merger occurs once two-thirds of the legislature party agree, and that it is for the legislature party, not the political party as a unit, to make that determination. The Bombay High Court in Girish Chodankar v. Speaker, Goa State Legislative Assembly (¶47-52) affirmed this disjunctive reading, reasoning that a legal fiction, once its stated conditions are satisfied, must be given full effect regardless of whether the underlying factual event has actually occurred.
However, while Baljit Bhullar and Girish Chodankar are textually defensible in isolation, they conflate two distinct questions: that is, on who activates the fiction and what the fiction produces. Paragraph 1(b) answers the first, for it is the individual legislature party of either of the houses whose 2/3rd agreement pulls the trigger. What Paragraph 4(2) deems into existence is not of its own making, where “the merger of his original political party” is drawn entirely from Paragraph 4(1). Therefore, to read 4(2) as self-sufficient is to detach the deeming provision from the very thing it deems, leaving a legal fiction that operates upon nothing. The same jurisprudence that demands full effect for such a fiction equally confines it to the purpose for which it was created and hence cannot be extended to produce a substantive outcome its own text does not define. The consequence of the disjunctive reading is that the phrase “original political party merges” in Paragraph 4(1) becomes constitutionally dead. Applying effet utile, Parliament does not enact surplusage, and every word of a constitutional provision must be given operative meaning.(¶25)
This view is supported by the Constitution Bench in Subhash Desai v. Principal Secretary, Governor of Maharashtra (¶151), which held that a 2/3rds agreement must attach to “a merger of the original political party” as its object, that is the agreement conditions the merger. In Rajendra Rana v. Swami Prasad Maurya (¶37), while interpreting the erstwhile similarly drafted Paragraph 3, the Supreme Court held that an act at the level of the original political party is a precondition, not one substitutable by legislative-wing action alone. The structural symmetry between Paragraphs 3 and 4 would make that principle directly applicable here.
Moreover, such a reading also preserves political parties as organisational entities, following the spirit of the X Schedule. Furthermore, the disjunctive reading is logically untenable, wherein, say, a single legislator constituting one hundred per cent of his party’s legislative presence can unilaterally “merge” with a rival national party. The Authors thus contend that such a reading would render the X Schedule nugatory and would exist only to protect any potential defector.
Reconstructing What Parliament Abolished
The legislative history of the X schedule further strengthens the case against Chadha. The aforementioned Paragraph 3, prior to its deletion by the 91st Constitutional Amendment, protected legislators who constituted one-third of a legislative party from disqualification in the event of a split. Parliament deliberately abolished this exception through the 91st Amendment because it was being systematically exploited, and the threshold was raised from one-third to two-thirds, with the split exception being eliminated. Only the merger clause, theoretically harder to abuse because it requires the party itself to act, was retained.
If the disjunctive reading of Paragraph 4, as in Chodankar is followed, then the merger clause has swallowed the very reform that Parliament effected in 2003. Under that reading, any two-thirds bloc of legislators in any single House can essentially declare a merger without any organisational act by the parent party and switch sides with impunity. The 1/3rd split exception that Parliament abolished in the 91st Amendment has been essentially reconstructed by judicial construction at the two-thirds level. This would be in direct contravention of Parliament’s intent and would render a deliberate constitutional amendment toothless.
Defection Defeated
This constitutional loophole will continue to be exploited unless the Legislature proactively takes cognisance and takes action to close the same. Therefore, two targeted amendments are proposed that would close the present lacunae.
Firstly, the X Schedule must acknowledge that a merger cannot be treated as complete merely based on a numerical supermajority within the legislative wing of one particular house, but rather depend on a formal, demonstrable act of approval by the party’s competent organisational body, which is appropriately communicated to the Speaker of the Lok Sabha. This will be along the lines of Article 63A of the Constitution of Pakistan, which expressly requires a declaration by the party head before a merger takes effect, affirming that organisational approval is a precondition to any purported merger. This does not innovate so much as it consolidates the constitutional position already articulated in Subhash Desai, wherein the legislative wing cannot unilaterally affect a separation from the parent political party for the X Schedule. Giving this requirement explicit textual backing would eliminate any ambiguity and neutralise the interpretive uncertainty that persists in the wake of decisions such as Girish Chodankar.
Furthermore, Mr. Chadha has demonstrated that it is presently possible for an isolated legislative bloc that satisfies the two-thirds threshold within a single house, while the party retains overwhelming strength across all other Houses and state assemblies, to seek the protection of the X Schedule. Hence, paragraph 4(2) must be amended to require that 2/3rds of the party’s total parliamentary strength across both Houses concur in any such merger. Ironically, this would be an extension of the measures presented by Mr Chadha himself in the Rajya Sabha in 2022, wherein he recommended that the present 2/3rd threshold be tightened to 3/4th of the legislature party. This would be in line with the rationale for the 91st Amendment, which closed the split loophole in 2003 by increasing the threshold to avoid such manipulation by isolated factions.
When considered collectively, these amendments would re-establish the merger exception to the limited role that the Parliament envisioned for the rule. In that vein, the 91st Amendment eliminated the split loophole by increasing the qualifying vote and eliminating the exception entirely. This would resolve the merger loophole by basing it on an organisational act and a cross-House supermajority. Without both, the X Schedule will continue to offer a guise for what is, in every meaningful sense, a defection.
Conclusion
Through a conjunctive reading of the X Schedule, the architecture of the Constitution does not permit a legislative faction, however numerically dominant within a single House, to substitute itself for the original political party in effecting a merger.
Subhash Desai has clarified that legislative assent is contingent upon, not constitutive of, the merger itself, while Rajendra Rana reinforces that organisational action at the party level remains indispensable. The subordinate decision in Girish Chodankar rests on a reading of Paragraph 4(2) that detaches it from its textual and structural anchor in Paragraph 4(1), and in doing so, distorts the limited function of the deeming fiction beyond recognition.
However, this very invocation of the claim underscores a more fundamental institutional weakness. Until the merger clause itself may be raised independent of an organisational predicate, the entire system of defection control will remain open to manipulation. Until this ambiguity is addressed both textually and institutionally, the merger doctrine shall remain an exception that enables circumvention of the X Schedule, rather than serving a limited purpose of defence.
Author Bio: Neil Thomas Varghese and Dhanya Dhanasekar are both 2nd-year B.A. LL.B. (Hons.) students at the West Bengal National University of Juridical Sciences, Kolkata. They are interested in constitutional law and passionate about legal research and contemporary discussions.
[Editorial Note: This piece was edited by Hamza Khan and published by Vedang Chouhan from the student editorial board.]