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The Anti-Defection Law needs a relook

Parliament can be effective only if individual MPs have a significant role as law makers, and if they can be held accountable for their actions by their electorate.

In the last few years, we have seen the role of individual Members of Parliament diminish on account of the Anti-Defection Law.  For example, when the issue of FDI in retail was voted upon, all MPs voted on party lines. It is difficult to believe that every Congress MP supported the move, or that every BJP MP opposed it, or that every MP of the BSP had no opinion on the issue and decided to abstain.

Two argument are often made in support of the Anti-Defection Law. One argument is that this Law would ensure stability of the government in an environment where money power can be used to persuade individual MPs to bring down elected governments. The other argument is that MPs are elected on the party ticket. Voters have exercised their preference for a set of policies espoused by the party, and therefore, MPs should be bound by the decisions taken by the party.

Whereas there may be some merit in the first argument, there is a flaw in the second one. Voters decide on a combination of particular candidates and their support for the political parties.  The binding nature of the anti-defection law assumes that the MP is voted solely on the popularity of their party, akin to a list system. In this context, it may be useful to see the differences between the current first-past-the-post system and the list system.

India follows a first-past-the-post system in elections to Lok Sabha and state legislative assemblies.  That is, the person who gets the highest vote in a geographical constituency is elected from that constituency.  The other main method of elections prevalent in several democracies is that of a list system. In such a system, parties get seats according to their overall vote share (provided they cross a pre-set threshold of vote share). The party nominates the members to its allotted seats. (There are also democracies that follow a mixed system, with a number of seats on the basis of first-past-the-posts, and other seats filled from the list.)

The list system has some advantages. It is more representative of the overall preference of voters.  It enables smaller groups, say with 10 percent overall support, to have representation in the legislature. It may encourage parties with a nascent support base, and enable alternatives to established parties.

However, there are several ways in which the list system may be seen as inferior to the first-past-the-post system. It does not require parties to build a wide appeal to have their voice heard, as even a smaller vote base could be sufficient to gain a few seats.  It could enable fringe extremist groups with a narrow base to have a voice in Parliament. Also, the list system would lower the chances of any party getting a clear majority and necessitate coalition governments.  (For example, though India saw clear majorities in the first eight Lok Sabhas, no political party garnered a majority vote share in any of these elections.) Such coalitions may also necessitate the support of fringe extremist groups; whereas, such a government would be more representative of voter preferences, it is debatable whether it would lead to greater social welfare.

Though the first-past-the-post system, as experienced in India, also has some of these failings, the threshold for gaining a seat in the legislature is higher. Typically, even in a three-cornered election, the winning candidate needs at least 30 percent of the vote share. Though we have seen minor swings in vote share resulting in major shifts in seat share  – for example, in Uttar Pradesh, the swing from BSP to SP was below five percent but the swing in seat share was over one-fourth of the available seats – the threshold to get a majority in the legislature is still above 30 percent of vote share.

Another fundamental feature of the first-past-the-post system is that it increases the accountability of individual MPs. As MPs are elected by a particular set of voters in a geographical constituency, the electors can demand the performance of MPs and reward or punish them in the next election. The Anti-Defection Law breaks this link.  MPs can say that they voted in a particular manner because their party asked them to do so.  They do not have to justify their individual votes on issues that may be important to their voters.  For example, if a voter who believes that FDI in retail is harmful to her interests asks a Congress MP to justify his support for the issue, the answer can be that the MP had no choice given the Anti-Defection Law. If he dissented from the party line, he would lose his seat, and would be unable to work for the electors’ interests on several other issues.

Furthermore, the Anti-Defection Law removes the need for the government to build a broad consensus for its decisions.  The ruling party can ensure the support of each of its MP by issuing a whip. If it needs to build further support to get a majority, it only needs to convince the leaders of other parties, and not individual MPs. In a sense, the role of an MP is diminished to just a person who has to follow orders from the party bosses.

Therefore, if we wish to make MPs more accountable to voters for their actions in Parliament, moving towards the list system is not a solution. Instead, we need to retain the present system and modify the Anti-Defection Law. One may argue in favour of repealing this provision as it does not, in any case, ensure stability of governments in an era of coalitions. A different argument to modify the law can be found in a (now lapsed) Private Member Bill proposed by Manish Tewari. That Bill suggested that the Anti-Defection Law be restricted to confidence votes (and Money Bills which are similar to confidence votes).

Parliament can be effective only if individual MPs have a significant role as law makers, and if they can be held accountable for their actions by their electorate.  The Anti-Defection Law is a major impediment, and we need a wider public debate on this issue.

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