Examine the Anti-Defection law

The Anti-Defection Law has not deterred defections. It has had undesirable outcomes.

225249268_a1bfcd0d68_bThe Supreme Court in a recent decision has strengthened the provisions of the Anti-Defection Law.  It said that any person (and not necessarily only a member of the relevant legislative House) may raise the issue of potential disqualification of an MP or MLA on the grounds of defection. This case arose after all four members of the Nationalist Congress Party in Orissa defected to the Biju Janata Dal, and the State President of the NCP (who was not an MLA) asked the Speaker of the Legislative Assembly to disqualify the members. Whereas this particular case represents a clear defection from a party to another, the Tenth Schedule of the Constitution (also known as the Anti-Defection Law) permits disqualification in several other situations. It may be appropriate to revisit the issues related to this particular feature of the Constitution.

The Anti-Defection Law was brought in as a Constitutional Amendment in 1985 in response to public anger against defections. Indeed the statement of objects and reasons for bringing in the amendment stated that the evil of political defection had become a matter of national concern and if it was not checked, it could very well undermine the very foundation of our democracy and the principles which sustain the same. However, the law was not restricted to defections from the party, but required that an MP or MLA had to obey the party whip on all occasions.

There is an argument made in favour of this law which says that most MPs and MLA’s win elections on the basis of their party affiliations, and therefore, should be bound to act as per the party directives. However, there is a flaw in this argument. In the Indian system, legislators are elected to single member constituencies by citizens resident in that geographical area. Therefore, voters are determining their choice on a combination of the individual candidate and the political party being represented. This system differs from the list system, in which voters select only their party preference, and the party determines which individuals will represent it in the legislature.

The Indian system builds a one-to-one link between the electorate and the representative. The legislator is expected to act in a way that represents the interests of the constituency, the broader national interest (as seen by the legislator), and the interests of the party. There can be instances when these different objectives are not in consonance with each other.  In theory, in such cases, the broader national interest is expected to trump the other factors.

The Anti-Defection Law in India turns this concept on its head. Any legislator who does not act in accordance with the party whip on any issue may be disqualified from the membership of the legislature. This implies that the decision of the party leadership will override all other considerations. Any MP or MLA who is willing to take a stance against the party’s direction risks losing their membership to the legislature.  Few legislators would do this.

A recent incident illustrates this point. During the discussion on FDI in retail last month, the government’s negotiators were trying to convince only the leaders of the other parties, and not all the MPs. Every MP voted on party lines. It is difficult to believe that there was uniformity of views within large parties; that every Congress MP was in favour of permitting FDI in multi-brand retail, and that every BJP MP was against it. Indeed, the Kerala Chief Minister (from the Congress party) is reported to have stated on the floor of the state Legislative Assembly that Congress MPs from Kerala were opposed to this policy but voted for it only due to the party whip. If this statement were true, it implies that those MPs did not vote according their conscience, but preferred to follow the party’s diktat.

The ironic part is that the Anti-Defection Law has been ineffective in preventing defection in several instances. The most recent example at the centre was the confidence motion in 2008, when several MPs did not vote on party lines, and 10 MPs were disqualified. There have also been cases when MLAs whose defection has led to the fall of a government have been made ministers by the next government.

Also, the nature of politics has also changed in a significant manner since the passage of the Anti-Defection Law in 1985. The Rajiv Gandhi administration that enacted this amendment was also the last government with a single party having a clear majority in the Lok Sabha. Since 1996, all governments have been coalitions of several parties, and the Anti-Defection Law does not have any provision against a coalition member party withdrawing support.  The current situation, in which the UPA government has been reduced to a minority after the Trinamool Congress and some smaller parties walked out of the coalition, and is dependent on outside support of parties such as the SP and the BSP illustrates this point.

There have been some proposals to amend this law. The Dinesh Goswami Committee on Electoral Reforms (1990) recommended that this law be restricted to confidence and no-confidence motions. The Law Commission, in its 170th report (1999), recommended that political parties should issue whips only when the government’s continuance was being tested. Three years ago, Mr Manish Tewari had introduced a Private Member’s Bill in which he had proposed that the Anti-Defection Law be restricted to cases where the government’s stability was under question: confidence votes and money bills. These formulations would deter destabilisation of governments due to defections while protecting the right of legislators to vote according to their individual conscience.

It is evident that the Anti-Defection Law has had some undesirable outcomes. It has not been effective in deterring defections, when the defector expects to be rewarded by the new government. At the same time, it has deterred MPs from expressing their beliefs and voting their conscience when they differ from the party line. Perhaps, it is time to examine the experience of a quarter century, and have a public debate on this law.

Photo: Pawel Loj