The dramatic defection of seven Aam Aadmi Party (AAP) Rajya Sabha MPs led by Raghav Chadha has brought into sharp focus the anti-defection law or rather the many loopholes in it which, over the decades, many politicians have manipulated to their advantage. Chadha and co. are invoking constitutional provision enabling them, as two-third of the members of the AAP ‘legislature party’ in Rajya Sabha, to merge with another party, the Bharatiya Janata Party (BJP) in this case, without incurring disqualification. Legally, this argument is suspect, but practically, they are likely to get away with it.What problem is the anti-defection law trying to remedy?When the Constitution (52nd) Amendment Bill, 1985 was introduced in Lok Sabha, its statement of objects and reasons provided the following rationale, “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” Indeed, political defections have even lead to fall of democratically elected governments.However, despite deeming political defections as ‘evil’, Parliament did not think it fit to define defection. The anti-defection law merely provides a list of situations that may result in disqualification and those which may not, and one of the latter is being invoked by the 7 defecting AAP MPs. This is because there is an inherent tension in the law between competing ideas of curbing defection and protecting legitimate political dissent. The law, however, fails to do both.Before the anti-defection law was finally enacted in 1985, the need for such a law was debated for close to twenty years in expert committees and in Parliament itself. These debates are very instructive as many experts and MPs noted the need to distinguish between going against one’s party on matters of principle and deserting one’s party for political gains.Even the possibility of empowering an MP to vote against their party’s command was debated. A ‘political party’, after all, had no constitutional recognition till the enactment of the ant-defection law in 1985. The constitution only recognised, and still does, individual members of the House and provided for their rights and privileges, including freedom of speech in legislature, even when it may go against the party’s diktats.It must be noted that several democracies across the world do not have laws providing for punitive consequences for acts of political defection. Instead, efforts are directed towards ensuring greater democratic functioning of political parties and strengthening of electoral laws. In India, every political party wants to keep its cadre disciplined. Internal dissent is frowned upon and, if publicly expressed, becomes fodder for media entertainment.Also read: AAP to BJP? Anti-Defection Law Meant to Prevent Political Defection, Not Facilitate ItIdeological affiliations exist only superficially as politicians are made to jump ship through fear and favour. In this context, the anti-defection law only muddied the waters further, instead of ‘combating’ the ‘evil’ of political defections.What loopholes are the AAP MPs seeking shelter under?Individual defection is evil but group defection is fineParagraph 2 of the Tenth Schedule (the anti-defection law) provides that an MP or MLA ‘shall’ be disqualified if they ‘voluntarily give up membership’ of their party or vote contrary to any ‘direction’ issued by party. If Chadha and the other six AAP MPs would have individually resigned from AAP, they could have been disqualified under this paragraph. Instead, they chose to defect as a group to claim protection under the law.In its original form, paragraph 3 of the Tenth Schedule provided that if a ‘political party’ splits, with at least one-third of its members of the ‘legislature party’ forming a new faction, none of them, now part of a new political party, will be liable for disqualification. Paragraph 4 provides for a situation where a ‘political party’ merges with another, for which at least two-thirds of the members of its ‘legislature party’ must agree. (Political party is the larger entity and legislature party comprises of all members of a House belonging to that party.)A combined reading of both these provisions meant this – since one member moving from one party to another would attract disqualification, if they could get more persons to first split a party and then merge their faction with another party, they would all avoid disqualification!The provision of split doesn’t exist anymore – it was done away with in 2003 – but that of merger exists and is open to flagrant misuse. Chadha and the other defecing AAP MPs are claiming that since seven-tenths of AAP MPs in Rajya Sabha have agreed to merge their ‘party’ with BJP, they fulfill the requirement of two-third members of the ‘legislature party’ agreeing to merger. This is a convenient reading of the law which is clear in providing for a merger of the ‘political party’ and not ‘legislature party’.The Supreme Court, in the case of Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023) clarified that merger has to happen at the level of the political party. But as this article shows, despite the text of the law being very clear, politicians have misused it repeatedly to claim merger and avoid disqualification.‘Neutral authority’ of Speaker/Chairman to determine disqualificationIt must be noted that disqualification due to defection is not automatic. It rests on determination by another political entity, whose impartiality is always under question. Paragraph 6 of the Tenth Schedule (the anti-defection law) makes the Speaker or Chairman of the Lok Sabha or Rajya Sabha, as the case might be, the sole arbiter of all questions related to disqualification due to defection.In the case of Chadha and Co., AAP MP Sanjay Singh has already submitted a petition with the Rajya Sabha Chairman for their disqualification. As per the Rajya Sabha (Disqualification on Grounds of Defection) Rules, 1985, the Chairman first has to determine whether the petition is in order and if it is, will serve a notice upon defecting MPs to respond in writing. After considering their response, he may give a decision or refer the matter to the Committee on Privileges for further scrutiny. Finally, after hearing the defecting MPs, he will decide the petition.All this while, MPs will continue as members, though now representing BJP. The procedure is more or less the same for all Houses. And due to lack of clear timelines, discretion is built into the process – it can be delayed or expedited at will.For instance, in the case of defection by Shiv Sena MLAs under Eknath Shinde, which led to the fall of the Uddhav Thackeray-led government in Maharashtra, disqualification petitions were first filed in June 2022 but ultimately decided by the Speaker in January 2024, after repeated directions by the Supreme Court. This kind of delay by the Speaker, particularly when defection worked in favour of the party in power, had become a norm, and also led the Supreme Court, over the years, to evolve various ways to address it.In Kihoto Hollohan v. Zachillu (1993), the Supreme Court upheld the constitutionality of the anti-defection law, while striking down Paragraph 7 which barred judicial review. But it also held that court will not intervene until the Speaker makes a decision. Given rampant delays, in Keisham Meghchandra Singh v. Speaker, Manipur Legislative Assembly (2020), the Supreme Court changed its stance to say that the court can intervene to compel the Speaker to take timely decision.In Subhash Desai, Supreme Court held that Speaker must decide within a reasonable time period and in Padi Kaushik Reddy v. State of Telangana (2025), the Supreme Court set a timeline of 3 months for the Speaker to decide. While there is a precedent for the Supreme Court to itself direct disqualification where the Speaker failed to do so (Rajendra Singh Rana v. Swami Prasad Maurya, 2007), the court has not been consistent in applying its own precedents.Where a certain defection is likely to help party in power, the Speaker or Chairman, may act slowly or expeditiously, depending on political calculations, and ultimately decide in favour of the defectors. But where the defection is against the party in power, defecting politicians have also found a way to prevent the Speaker from acting against them – by moving a no-confidence motion against the Speaker!In the case of Nabam Rebia and Ors. V. Deputy Speaker and Ors. (2016) such a case reached the Supreme Court, which held that, first, the no-confidence motion against the Speaker must be decided and till then disqualification petitions will be pending. In the meanwhile, defecting MLAs may succeed in changing the government as well as the Speaker, to ensure that the new Speaker would decide in their favour as happened in Maharashtra, for instance. Then in Subhash Desai, Supreme Court raised doubt on the correctness of the Nabam Rebia judgment on this question and referred the question to a larger bench, which is yet to decide it.No real consequences of disqualificationEven if an MP or MLA gets disqualified for defection (or if they resign from their seat to avoid disqualification), they can immediately contest on the same seat that became vacant and get elected again. Some argue that it is fair if the disqualified MP or MLA gets re-elected again, this time on the ticket of the party they defected to, as it would indicate that voters approve of their defection. But in the process, as for instance what happened in Madhya Pradesh in 2020, a democratically elected government may fall.Can disqualification due to defection be an effective deterrence if disqualification operates only as long as defecting MPs don’t manage to get elected again, which could be immediately?What is likely to happen to Chadha and other defecting MPs?Practically, nothing much! In a rare display of extreme urgency, the Chairman of the Rajya Sabha has already approved the ‘merger’ which was announced just three days ago and against which AAP filed a disqualification petition only a day ago. This is the same Chairman who took almost a month to consider and eventually decline a notice of no-confidence against the Chief Election Commissioner moved by Opposition MPs. In the absence of a written reasoned order, it is not possible to comment further on it except to say that there could have been no proper application of mind to the facts of the case and the approval was merely a formality.Rajya Sabha Chairman approves merger of 7 AAP MPs with Bharatiya Janata Party; BJP’s tally now rises from 106 to 113.MPs Raghav Chadha, Ashok Kumar Mittal, Harbhajan Singh, Sandeep Kumar Pathak, Dr. Vikramjit Singh Sahney, Swati Maliwal and Rajinder Gupta, who quit AAP to join… pic.twitter.com/gx2uczD8ZM— SansadTV (@sansad_tv) April 27, 2026AAP may now challenge it in court which might take months, if not years, to decide the matter. In the meanwhile, some of the defecting MPs may simply retire after completion of their terms, without facing any actual legal, or perhaps even political consequence, for defecting from AAP to BJP. It is, therefore, safe to conclude that the anti-defection law, due to its many flaws and loopholes, is an utter failure in ‘combating’ the ‘evil’ of political defections.Maansi Verma is a lawyer and Founder of Maadhyam, a civic engagement initiative closely trackinglegal and political developments in Parliament