The anti-defection law has attracted national attention with Raghav Chadha, a member of Rajya Sabha belonging to the Aam Aadmi Party (AAP), and three others leaving AAP to join the Bharatiya Janata Party (BJP). Chadha showed a list of seven members of the Rajya Sabha, including himself, as having broken away from the AAP. However, as of now, only Chadha and two others have officially joined the BJP.Chadha has reportedly submitted a letter to the chairman of Rajya Sabha, C.P. Radhakrishnan, claiming that he and the six others constitute two-thirds of the members of AAP in the Rajya Sabha, therefore the provision of disqualification under paragraph four of the 10th schedule in the anti-defection law would not apply to them. This claim needs to be seriously and objectively examined. The anti-defection law was enacted in 1985 with the object of preventing political defection where legislators elected on a party ticket leave that party to join, in most cases, the ruling party or topple the incumbent government and help form another government.This resulted in rampant political instability in states and affected governance in the country. Lust for power was the driving force behind this unethical conduct of India’s legislators. A constitution bench of the supreme court in Subhash Desai vs Secretary Governor of Maharashtra, 2023 described the immorality of political defection in the following words “moral and democratic principles are compromised when a legislator shifts allegiance after the electorate votes for that legislator on the belief that they represent the ideology of a certain party. The 10th schedule was introduced to combat the evil of political defections which was likely to undermine the very foundations of our democracy and the principles which sustain it.” The 10th schedule of the Constitution contains the law on defection. While the law does not use the word ‘defection’, it focuses on the penal consequences of certain actions of the legislators. Paragraph two of the 10th schedule specifies two grounds for disqualifying a member for being the member of the legislature. One, if he voluntarily gives up the membership of the party. Second, he votes or abstains from voting contrary to the direction of the party. But before invoking this ground, it has to be ascertained whether the member had secured prior permission from the party to vote against its direction or his action has been condoned by the party within 15 days from the day of voting. In both cases, he will not be disqualified. Chadha and other members who followed him into the BJP have in fact voluntarily given up the membership of their original political party. This brings them squarely under paragraph 2(1)(a) of the 10th schedule and they can be disqualified. But the question is: Do they have any credible defence against their disqualification? The 10th schedule, as it was originally enacted, contained paragraph three that provided grounds for immunity to the legislators from disqualification – if they pleaded that they belong to a faction that has arisen in the party as a result of a split and that they constitute one-thirds of the legislature party in that legislature. The split in a party leading to the breakaway of one-third of the legislators, in a way, was a well meaning provision to accommodate genuine dissent against a tyrannical party leadership. But since our politicians are credited with an incredible level of inventive genius, they soon found novel ways to get around this provision. In fact, their meanderings became more frequent and profitable. The parliament then stepped in and tightened the law by deleting the split provision altogether through the 91st amendment of the Constitution in 2003. This amendment left our legislators with no options. It is then that they turned their attention to paragraph four of the schedule. But this paragraph has a different operational sphere and is quite different from the deleted paragraph three in terms of its content. The gist of paragraph four is that when the legislator’s original political party decides to merge with a more politically attractive party, and the legislators agree with such a merger, they shall not be disqualified on the ground that they have voluntarily given up the membership of their original party. This is logical because the legislators have not voluntarily given up the membership of their party. It is their party which has taken the initiative to merge with another party. Therefore, the legislators obviously cannot be penalised for the action of their party. But here too the law is very strict in as much as the immunity from disqualification is available to the legislators only when two-thirds of them agree to the merger. This would mean that even after the merger of the two parties, if less than two-thirds of the legislators agree to the merger then they would not escape disqualification. Sub paragraph two of para four explains it in clear terms as follows:“…for the purposes of sub paragraph 1 of this para (for the purpose of exempting the legislators from disqualification) the merger of the original political party of a member of a House 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”A merger between two political parties is not the concern of the anti-defection law. It takes cognisance of the merger only when two-thirds of the legislators agree to such merger. The emphasis on “if, and only if,” clearly shows that the law grants immunity to the legislators only if two-thirds of them have agreed to the merger.Two things are clear from the above analysis of law. One, there has to be merger between the legislators’ original party and another party. Two, not less than two-thirds of the legislators agree to the merger and join that party. The proposition that it would suffice if only two-thirds of the legislators merge with another party without a merger of their original political party is absurd, to say the least. In fact we should remember that the anti-defection law was enacted to prevent political defection and not to facilitate it. P.D.T. Achary is former Secretary General of the Lok Sabha.