Anti-Defection Law and the Question of Democracy

Ideology based politics appears to be on the wane in contemporary India. The rupture in the one-party dominant system (i.e. the Congress) initiated a new epoch in the Indian polity. Multiple parties based on identities and other related factors emerged while some split from their mother party, the Congress, for instance has split more than 70 times since its inception in 1947. Economic inequality and informalisation of labour often made it easy for political parties to recruit members. Defections were rampant as members were continually in the search for greener pastures. Political parties with substantial corporate backing were often successful in recruiting viable candidates from other parties. The phrase “Aya Ram Gaya Ram” became famous in Indian politics when a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.

The Anti-Defection law (1985)

In order to reign in the situation and possible damage to the representative system, defection was declared illegal for legislators. The Tenth Schedule of the Indian Constitution is commonly referred to as the Anti-Defection Act. It was incorporated in the Constitution in 1985. The primary objective of the law was to deter “the evil of political defections” by legislators driven by the temptation of office or comparable considerations. The law stated that a member of a house of a political party will cease to be a member of the house if he voluntarily resigns from the party or abstains from voting in the house in a way which is contrary to any direction issued by his/her political party. The law also provides for certain exceptions: in case 1/3 members (later amended to 2/3 in 2003) decide to defect from their party and join another party or  an individual chooses to resign  from his/her party and continues to hold his/her office if 2/3 of the members of his/her party merges with another party. Other exceptions include that of the presiding officer if he/she voluntarily resigns from the party or re-joins the party after the end of the term of office. An independent member will also be disqualified as a member of the house if he joins a political party during his term, while a nominated candidate may join a political party provided it is done within the six months from the starting day of his/her office.

Does the law render democracy hollow?

On the surface, the law may appear to be very effective in providing stability, as party members would be unable to defect from their respective parties, however a deeper understanding of the situation reveals a far more disquieting state of affairs and questions the credibility of the law. First and foremost, the law gives the impression of an inherent bias. It makes it illegal for any independent candidate to join a political party while it is permissible for any nominated candidate to join a party of his/her choice within the stipulated time. Its working is irrational in the sense that it bans individual defection while allows defection in large numbers, enabling mass defections to become common as powerful individuals within a party often lure and at times harass other more vulnerable members  to defect en masse  so as to  bypass the law. Such mass defections threaten the stability of the government.

Moreover, the exclusion of the “split provision” encouraged political parties to manufacture extensive defections (to merge) as an alternative to lesser ‘retail’ ones. Legislators began to quit their membership of the House so as to avoid being disqualified from ministerial berths. The upper limit with respect to the size of the Council of Ministers connoted a rise in the “number of positions of parliamentary secretaries in states.” The Speakers began to actively participate in political matters, facilitating the process of making and breaking governments. The anti-defection law does not stipulate a specific period within which the Speakers have to decide on defection proceedings. Consequently, depending upon the requirement of the political situation, Speakers either passed judgments summarily on defection proceedings or deferred acting upon them endlessly.

In the 2018 state elections in Karnataka, although the Congress and Janata Dal (Secular) contested separately, they decided to form a coalition government even though the Bhartiya Janata Party had won the maximum number of seats. In 2019 the BJP secured a massive majority in the Lok Sabha which in turn had a destabilizing effect on the state government of Karnataka. In the first week of July, fourteen MLAs of the coalition submitted their resignations. The defected MLAs did not return to the house and even prevented other MLAs of the coalition from meeting them. The following weeks witnessed a humongous political drama and finally on July 23 Karnataka Chief Minister H D Kumaraswamy failed to prove his majority in the house and the Congress-JD(S) government collapsed. A similar situation arose in Goa wherein 10 Congress MLAs defected to the BJP in Goa increasing its strength to 27 in the 40-seat house while the Congress was left with only 5 legislators.

Both instances expose the lacunae within the anti-defection law. The law can be easily bypassed. The law fails to differentiate between dissent and defection. A member of the house can be charged with defection if he/she goes against the recommended pattern of voting. Edmund Burke proposed the trustee model in which the legislator would vote in the greater interest of the nation by using his/her conscience while in the delegate model the legislator will first carry the mandate of his constituency. The politico model provides for an amalgamation of the two systems. The Anti-Defection Law of 1985 does not ensure that the legislator follows either of the abovementioned systems, on the contrary, it establishes an entirely different system, that is, of being loyal to the party line. This certainly disrupts the voter-legislator relationship since he/she is exempted from focusing on the issues pertaining to his/her constituency. This defeats the very notion of representative democracy. In India’s Westminster system of parliamentary democracy, the executive is drawn from the legislature as such the executive is not truly independent.

The authoritarian character of India’s political parties ensures that the members of the executive control the parties, therefore, it is legally binding for the legislators to comply with them to avoid unwanted consequences. In many states it is fairly normal for a party member to vote against the majority party decision rendering democracy resilient and initiating impartial debates which is a sign of a healthy democracy. While the Anti-Defection Law did take a courageous step towards curbing rampant defections, its legacy has been rather chequered and its functioning has been questionable. Though defections are damaging for a healthy polity but the emphasis should be on removing the conditions which initiate such defections. The anti-defection law makes a mistake between dissent and defection, which calls for an amendment. The question of democracy should be given serious consideration and the right to dissent should be upheld. In other words, a law does not necessarily help in solving the problem of defection, on the contrary, measures should be taken to contend with the situation in more meaningful and effective ways.

Manish Dutta

Intern, AGA