This article was published in Dawn News on May 2, 2026, at the following link
https://www.dawn.com/news/1996865/defections-or-merger
DEFECTIONS of elected legislators is a recurring theme in the politics of South Asia, most notably in India and Pakistan. Developed democracies such as the UK don’t legally bar defection, but despite the lack of restrictions, floor-crossing is rare. Although Pakistan and India have extensively legislated to stop legislators from defecting from the party from where they were originally elected, political parties of the region keep facing the trauma in one form or the other.
A powerful political storm hit India about two weeks ago when, despite the otherwise strict anti-defection laws, seven members — two-thirds of the total membership — of the Aam Aadmi Party in the Rajya Sabha (Upper House), dramatically ‘defected’ to the ruling BJP. The move, which has stirred continuing controversy in the Indian political landscape, is deemed perfectly constitutional by the dominant legal opinion in India and therefore does not attract anti-defection laws. Although the Rajya Sabha secretariat has blessed this defection in the guise of a merger, the AAP has challenged it in court.
At the centre of the controversy is the 10th schedule of the Indian constitution titled ‘Provisions as to disqualification on ground of defection’, which was introduced through the 52nd constitutional amendment in 1985 in a bid to stop the rampant trend of defection prevailing at the time. The provisions of the 10th schedule are more sweeping than equivalent provisions, such as Article 63-A ‘Disqualification on grounds of defection, etc.’, of Pakistan’s Constitution. Paragraph 2 of the 10th schedule of the Indian constitution calls for the disqualification of a legislator if he voluntarily gives up the membership of his original party or “if he votes or abstains from voting in such House contrary to any [emphasis added] direction issued by the political party to which he belongs…”. This provision is sweeping because it does not limit the party authority to direct the member to one or a few subjects. The legislator must follow the party direction in every matter or face disqualification. This provision is in stark contrast to the current provisions in Article 63-A of Pakistan’s Constitution, which bind a legislator to follow party directions only in four specific matters: 1) Election of the prime minister or chief minister; vote of confidence or no-confidence against a PM or CM; 3) voting on the budget; and 4) constitutional amendments. A legislator’s vote against party direction on any of the other party directions does not attract the defection clause and therefore does not lead to disqualification. Pakistani legislators may vote against party direction even in the election of the president of the country, assembly speakers and senators as these are held by secret ballot. One may, therefore, argue that the Pakistani defection law is more democratic than its Indian counterpart.
It is true that the defection law here has evolved over a period of time. The original 1973 Constitution did not have any defection clause. The only restriction imposed for a period of 10 years was that a vote of a member of assembly in favour of a no-confidence motion would not be counted if the majority of his parliamentary party did not vote in favour of the no-confidence motion. The pendulum swung to the other extreme in 1997 when the 14th Constitutional Amendment made the defection provisions as sweeping as the present ones in India’s constitution. This amendment provided that in case a member who votes contrary to any direction issued by the parliamentary party to which he belongs, or abstains from voting against party policy in relation to a bill, may be deemed to have defected. The amendment also brought the violation of the party constitution, code of conduct or declared party policies within the definition of defection.
A balance of these two extremes was attained in the Legal Framework Order promulgated by the military government of Gen Pervez Musharraf in 2002 and later endorsed by parliament in the 17th Constitutional Amendment. These balanced provisions, as indicated, are now a part of the Constitution. Voting against party direction on a constitutional amendment was included in 2010 among the acts attracting the defection clause, as part of the 18th Amendment package.
A unique feature of the Indian defection law, which doesn’t have a parallel in Pakistani laws, is reflected in paragraph 4 (2) of the 10th schedule which provides that if two-thirds of the members of the legislature party concerned agree to merge with another party, the merger will be deemed to have taken place and the merging members will not be deemed to have defected. Seven Rajya Sabha members belonging to the AAP, out of a total 10, took advantage of this paragraph and merged with the BJP. The act of the seven legislators is, therefore, considered to be a ‘merger’, which doesn’t attract the defection clause. Had less than seven members made the decision, they could have been disqualified as they would not have formed two-thirds of the total number of members.
Most political and legal observers feel that the merger has been done and it cannot be undone now but the AAP and its legal experts feel that the decision has to be taken by the political party’s institutions and not by some members of a legislature even if they constitute two-thirds of the members of the parliamentary party of that House. These legal experts rely on paragraph 4(1) of 10th schedule, which states that “A member of a House shall not be disqualified … where the original political party [emphasis added] merges with another political party…”. There may be lacunae in the schedule which has to be sorted out by the courts but another sad chapter on defections has been written in South Asia.
