Anti-defection law does more harm than good

In 1985, soon after the Congress won a landslide victory with over 400 seats, the then Prime Minister Rajiv Gandhi got Parliament to pass the anti-defection law. As per this law, any legislator who defied the party leadership on a vote would be seen as a defector and disqualified, meaning thereby that once the party issued a whip (a written notice to its legislators requesting attendance for a particular vote), the legislator could not vote as he chose but had to vote as the party wanted him to. A legislator could be disqualified even if he abstained from voting. The vote need not necessarily be a confidence vote, linked to the survival of a government; the anti-defection law can be invoked for any vote that a party chooses.

The law originally shielded legislators voting against their party if one-third of them did so. But in 2004, this aspect was also removed. The logic was that the one-third law encouraged “wholesale defection”.

In a 2007 case (Rajendra Singh Rana vs Swami Prasad Maurya, connected to defections in the BSP), the Supreme Court said that even signing a letter to the governor supporting the opposite party was equivalent to defection. This is one reason why the BJP did not name the members from the Congress or the JD(S) who may have been supporting it in Karnataka. If their names and signatures had been added by B.S. Yeddyurappa in his letter to the governor, it could have been fatal for them.

The Union government, arguing in favour of the BJP in Karnataka, claimed that because the Karnataka MLAs had not yet been sworn in, the anti-defection law does not apply as yet. The SC said that this claim was “preposterous” and “an open invitation to horse-trading”. Over the years, because of this law, the judiciary has been able to impose itself on what is essentially the prerogative of the legislature. This may be seen by some as being necessary but it is not healthy in a parliamentary democracy.

Over 100 MLAs and more than 24 MPs have been disqualified under this law so far. Other great democracies also have similar problems but their solution or punishment is not as drastic as ours. In the United Kingdom, an MP who defies a three-line whip (meaning a written notice which has been underlined three times to mark its urgency) could be expelled from the party but retains his seat, unlike in India where he loses both. In Australia, the punishment for defying the whip means denial of some party resources. In the US, members cannot be expelled from political parties and, therefore, the question of such punishment does not arise. India is the only major democracy where casting a vote against the party directive results in such an extreme action.

In 1992, the SC (in Kihoto Hollohan vs Zachilhu case) decided that the law was not against free speech or any other freedom and was not against parliamentary democracy. The court said, “The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.”

One need not agree with this, but even if one does, some serious questions remain unanswered. What happens in case the party joins a post-poll alliance with another party whose ideology a legislator is opposed to? Should he let down his voters merely because his party leadership has taken a decision in that direction? It’s not easy to answer this; the anti-defection law ignores it.

The anti-defection law was justified at the time it was enacted because that period saw a lot of legislators changing their party after being bribed with offers of ministries or money. In the late 1960s, a Congress legislator from Haryana, Gaya Lal, changed his party three times in a few days. This action produced the phrase Aaya Ram, Gaya Ram referring to those legislators who owed no party loyalty but were in politics purely for themselves.

The anti-defection law was meant to curb such activity. And it has done so to a large extent. However, it is too sweeping a solution to what is essentially a problem of morality. If a legislator defied the party on which he was voted, surely it was the elector who should punish him and not the party.

The anti-defection law essentially removes the conscience of the elected representative and is thus a blow to democracy and constitutionalism.

It also takes away the agency and freedom of the legislator. The law fails the citizens in two most important ways. First, the loyalty that a legislator must have towards his voter and his constituents as opposed to his party. And second, the assumption, which is false, that the party is always right. The history of Independent India shows that no party is perfect and their leaderships are capable of mistakes. The anti-defection law blunts the resistance to such actions.

Parliament is the loudest and most powerful forum in a democracy. The anti-defection law has muzzled all forms of internal dissent in it. No matter which side of the divide one is on Karnataka issue, all of us must look again seriously at this law and examine the harm it has done, while acknowledging its benefits.