Is Anti-Defection Law Degrading Our Parliamentary System?

The current political crisis in Karnataka has once again raised the question of whether the “anti-defection law” is degrading our parliamentary system. 

To give you some context:

Karnataka's state elections in 2018 threw up a hung assembly with none of the parties attaining a clear majority. While the BJP emerged as the single largest part with about 104 seats, it didn’t have the required 113 MLAs to form a government. In this context, the Congress that came second (80 seats) and the third-placed JD(s) that won 37 seats managed to cobble up a coalition with the latter heading it. 

                    

Nonetheless, the arrangement was expected to be highly unstable as the strongholds for both Congress and JD(s) were the southern districts. This was causing a turf war among their ranks and currently, the strain has started creating rebellions within both parties. 13 Congress MLAs and 3 JD(s) MLAs have tendered their resignations. This has rendered the government short of the required numbers. But Chief Minister Kumaraswamy isn’t someone who’d walk away without fuzz, and the government has been trying to invoke the “Anti-Defection Law” to dissuade the resignations.

What is “Anti-Defection Law”? 

In the 1970s, almost 30 years since independence, the sheen of clean and ideologically driven politics had waned drastically and unethical bribing and horsetrading of elected representatives (MLAs and MPs)  by various political parties had become the norm. The problem saw epic proportions when a Haryana MLA named “Gaya Lal” who was elected on a Congress ticket switched sides 4 times within a fortnight. To purge such blatant misuse of money power to buy elected representatives, parliament enacted the “Anti Defection Law” in the year 1985 through the 52nd constitutional amendment. This was a landmark bill that effectively ended unethical party defections, but it has opened up a bigger malice that plagues our polity. It has literally killed the independence of legislators and reduced our parliamentary system into a dictatorship of the party whips. 

Let us break it down:

Anti-defection law empowers the speaker (or chairman) of the concerned house to disqualify an MP or an MLA who is seen to be acting contrary to the dictates of the party on whose ticket he/she got elected. A member so disqualified is also debarred from contesting the subsequent elections to that house for the rest of its term. Under the law, parties are empowered to issue whips to all its members in the house on any motion/bill and the members are bound by it irrespective of their personal notions.

Technically, whips are to be used sparingly and only for the most pressing of issues, but in practice, parties have been issuing whips for every single procedure in the houses. This has in effect reduced all our MPs and MLAs to mere sheep in a flock that gets herded by their party bosses. Beyond the loss of individuality among parliamentarians, anti-defection law has also led to political parties becoming highly centralized, as the strong clauses of “anti-defection” secure the position of the party bosses. Notably, for elected members to defy their party whip, they currently need the support of ⅔ rd of the total members of their party in their respective house. Unless the membership of a party in a concerned house is small, this is a highly unlikely scenario, thereby effectively insulating the major parties from any kind of legislative descent.

While the issues discussed above are a direct consequence of the provisions envisioned in the law, in practice, the situation is more problematic. Apart from the conduct of the legislators within the houses, their behaviour outside it can also attract the anti-defection clause. A provision in the anti-defection law says that legislators may attract disqualification if they are seen to have voluntarily given up their party membership. Courts have interpreted this clause to imply that legislators who speak against their party’s stand in public have voluntarily given up their party membership. Even being spotted at events organized by other parties without the consent of the parent party has led to the disqualification some members in the past. More pressingly, the neutrality of the speaker to take decisions on disqualification has also been controversial, as the speaker himself is usually a member of the ruling party and takes decisions that favour his party.  

What needs to be done?

In Karnataka, the JD(s) and the Congress actually fought a corrosive election against each other, particularly in the southern districts. The current defectors are protesters who didn’t like the post-election alliance that was formed. It is only logical that they aren’t comfortable with working within the coalition and therefore have tendered their resignations. Considering that they haven’t been found to have voted or violated the party discipline in any way, it would only be prudent for the speaker to accept their resignations. Rather than doing that, it appears that he is trying to force a disqualification on them, which is ethically unfair. The same was the case with the disqualification of Mr.Sharad Yadav in Bihar, who displayed defiance against his party JD(u), which had switched its allegiance to the BJP led alliance mid-way through its term in office.   

Considering the degradation that anti-defection law has caused to our systems, it would be prudent for us to re-evaluate its merits. Some have suggested that whips should be restricted only to the motions that determine the stability of the government (Confidence motions, Budgets). The law’s power to curtail the conduct of the representatives outside the house has been felt by many as an overreach and hence, needs to be removed. Also, as the speaker is a political person, it would be prudent to vest the power to disqualify members with the Election Commission. Reducing the quantum needed to defect from a party from the current ⅔ rd is also a point worth considering. As an additional safeguard, it would be good to install a cooling-off period for turncoats (elected members or otherwise), for switching parties and contesting an election. Such a cooling-off period would not just deter defections, but would also prevent opportunistic switch-overs just before a general election. If these aren’t acted upon, then the quality of our parliamentary institutions will continue to degrade.