Against a defective law: Anti-Defection or Anti-Democracy
With the dust and the legal battles over the collapse of the ruling coalition in Maharashtra almost settled, it looks like the BJP led government is here to stay. However, this is neither surprising nor the main story. For, the BJP was already the largest party in the Vidhan Sabha and it has done this before, notably in Madhya Pradesh. No, the bigger story is the central role the Anti-Defection law played in this political crisis.
The Anti-Defection law came into force in 1985 as a constitutional amendment. It was one of the first major actions of the Rajiv Gandhi government after coming to power in the 1984 elections. The law was something of a rarity in that it passed both houses of parliament with unanimous support, which is quite surprising given how controversial it is today. This unanimous support originated from the fact that throughout the 1970s and 1980s there had been calls to do something about the scourge of party switching. Many will be familiar with the story of Gaya Lal, the Haryana MLA who changed parties 3 times in 2 weeks; it was this incident that led Yashwantrao Chavan to coin the phrase Aaya Ram Gaya Ram. The numbers bear out this idea of rampant party switching: in the 1967 elections, 3,500 MLAs were elected all across India and of them 550 switched parties. This issue of party switching entered the forefront of the national consciousness when in 1979 the central government collapsed after 76 MPs defected to the opposition. Apart from the instability caused by defections, there was also the belief that these defections led to increased corruption, and that they were driven purely by greed. For instance 50% of defectors in 1968 were given ministerial berths.
It is thus quite evident that the Anti-Defection law was passed to address a serious problem, but the question remains: was it successful in addressing the problem? Further, is it even viable or advisable to attempt to combat party switching through legislation.
Indeed there are basic issues with the law. The Anti-Defection Act stated that if a legislator failed to vote as per the party whip, the party could move the speaker to have him expelled from the house. The first issue arises from the fact that the law empowers the speaker to make all decisions regarding defections. In fact it goes on in a later section to bar courts from intervening in any cases of disqualification under the Anti-Defection law. Now, this wouldn’t be a major issue if the Speaker of the house was a completely apolitical appointee. But in the Indian system, the speaker is an elected partisan official. The other major issue is that of the “two-thirds clause”. This clause says that any time more than two-thirds of a party defect they shall not be expelled as this is considered a “split” in the party and not a defection. In effect this clause acts to legitimize mass defections and so we see that this law’s most direct consequence is not stopping defections, but stripping individual MPs or MLAs of their ability to make decisions themselves and forcing them to vote as ordered or be expelled.
Herein lies the central issue with this law, the way it infringes on the power of the individual representatives of the people and moves that power to the party bosses. The belief that switching parties is an inherently despicable act is quite unfair. To give but one example,
consider the career of the famous Filipino president Ramon Magasaysay. Today there is a good
governance award named after him. But if he hadn’t switched parties at the very last minute after being denied his party’s presidential nomination, he would never have been president in the first place.
The law’s many defects have been regularly exploited by politicians. As mentioned earlier, the power of expelling legislators under this law is given to the speaker. This most recently led to controversy when the Speaker of the Andhra Pradesh Legislative Assembly took nearly 2 years to act against MLAs who defected to his party. Even more insidious is the way governments have been brought down even when the would-be defectors did not meet the requirements of the two-thirds clause. The most famous example of this is what happened in Madhya Pradesh, where Jyotiraditya Scindia led 22 Congress MLAs in defecting to the BJP. As they were less than two-thirds of the Congress strength, they were expelled. But the removal of these 22 MLAs was enough to give the majority in this reduced assembly to the BJP, and Scindia for his efforts was rewarded with a position in the Union cabinet. The same thing has also occurred in Pondicherry. There are also examples of situations in which the defectors were able to meet the required two-thirds mark and they could topple a government without facing any action. A perfect example of this is what prompted this article, namely the political crises in Maharashtra in which Eknath Shinde led more than 40 out of the 50 odd Shiv Sena MLAs in the Vidhan Sabha in revolt against the MVA government.
Many will argue that regardless of its failings, the Anti-Defection law is important as it forces legislators to be true to their word and stay loyal to the party on whose ticket they were elected by the people. However, and this is crucial, this line of thought can lead to some tricky
questions: Basically, what is being said is that politicians should be held accountable for what
they say on the campaign trail, insofar as their declared loyalty to a particular political platform
goes. Now ask yourself: how is this any different from the idea that campaign promises should
be legal enforceable? The latter is an idea which I am sure no one would seriously consider
turning into law. So why are declarations of loyalty to a particular political outfit legally binding
when nothing else on the campaign trail is?
Take for example the case of the Shiv Sena itself. It ran in the 2019 elections as an incumbent party and campaigned on the successes of the BJP-Shiv Sena coalition government. It was on the promise of continuing this government that it won 55 seats in the Vidhan Sabha and then turned around and formed a government with the opposition parties. Would this be considered a violation of the people’s mandate? These are the sorts of murky questions that arise when you try to turn campaign promises into binding contracts.
Worse still is the way this law turns legislators into cattle that can be “whipped” into voting as per the wishes of the party leaders or risk expulsion. The law thus turns legislatures, which are meant to be places where the people’s representatives freely debate and form policy, into simple forums for party leaders to come and announce their positions which all other members must dutifully follow. It is because of this anti democratic nature of the Anti-Defection law that many have recommended its repeal. The authors of a comprehensive study of Anti-Defection laws across the world also suggest that politicians pass these laws not for noble reasons like making sure elected officials adhere to the people’s mandate, but rather to achieve more control over the rank and file of their party.
This transfer of power from individual legislators to party leaders wouldn’t be so problematic if party leaders in India were chosen in a transparent and democratic manner. Whatever the failings of MPs and MLAs, at the very least they are elected by the people. The same can not be said for party presidents. Contrast the upcoming Congress presidential elections, which will be the first true elections for the office in decades, with the recent Tory party leadership race which saw 160,000 Tory party members vote. The Congress on the other hand will only allow select district and state level party leaders to vote in the election. Of course, the BJP party president is also chosen in a similar fashion.
While many countries, especially in the developing world, have an Anti-Defection law of some description, the severity of India’s law is quite rare. Even abstaining when you have been ordered to vote for a bill can lead to your being expelled from parliament. Furthermore, the law does not simply apply only to important votes like confidence motions and budget votes. Rather, it applies to each and every vote for which the party chooses to issue a whip. The only other countries with Anti-Defection laws as draconian as India’s are Pakistan, Bangladesh, Guyana, Sierra Leone and Zimbabwe. It goes without saying that Pakistan and Zimbabwe aren’t ideal company when it comes to such issues. A commonly suggested and rather straightforward reform is to amend the law so that it only applies to votes of supply and confidence. The stability of governments would then be assured without depriving MPs of their voices and the freedom to vote as their conscience dictates.
Thus, it seems quite reasonable to conclude that the Anti-Defection law is itself rather defective and counter-productive in the extreme. The cause of democracy would be better served if we recognized that some problems can not be solved by legislation but need a change in the underlying ethos.