Once touted as one of the most vibrant democracies based on modern principles, Indian democracy has gradually slipped to a chaotic governance system. For the mainstream Indian political parties, this may be due to the past legacy of British laws resulting in sharp differences between caste, region and religion as the divisive principles. However, the Indian constitution was built on modern principles to unite the diverse peoples for solving problems of the poverty stricken population. But as the historically subjugated population started asserting their political rights guaranteed by the Constitution, the anti-defection law with fundamentally undemocratic principles was allowed to overtake this vibrant democracy. Western political philosophers would be surprised to know that the individual parliamentary member does not have a right to dissent within the parliament, and members may lose their house membership in case they vote against the wishes of their respective parties within the house. This paper provides detailed evaluation of the anti-defection law and how it is against the fundamental principles of modern democracy. The primary target of this paper is the political science student, however, it should be of interest to a broad readership including those interested in law and governance.
Keywords: Anti-defection law, Constitution, Politics, Democracy, Parliament, Political party
Schedule X of the Constitution of India, containing the anti-defection law, was enacted after three and half decades of India’s experience with parliamentary democracy. During the initial 15 years of Indian parliamentary democracy, the first Prime Minister Mr. JL Nehru led the government with Congress party majority. The phenomenon of defection became more apparent from the 4th Lok Sabha, that is, from 1967 onward. As per the debates of Rajya Sabha during the discussion of the bill, it was explained that the defection phenomenon really happened when the Congress Party suffered reverses – in some of the States in the elections, resulting in the reduced majority of the Congress Party in the Lok Sabha. (Rajya Sabha debate 1985)
Post Nehru era, multiple factions within the Congress party started to emerge along with more representation of opposition parties. Further, India experienced the most tumultuous period of Emergency which tested the strength of Indian constitution and parliament. The 70s era marked floor crossing as a common problem facing all parties, wherein any member changes his/her stance abruptly just before the voting inside the parliament, probably many times due to monetary allurement. After many cases of floor crossing on crucial voting, the term “Aaya Ram Gaya Ram” was coined to describe this phenomenon in the mass media.
Mrs. Indira Gandhi introduced the constitution amendment bill against defection in May 1973; but the proposal could not be passed in the next two years. Finally, the bill was overtaken by imposition of Emergency, the biggest threat to the Indian democratic system, and it was given a decent burial. (India Today 2015).
The anti-defection law, also known as ‘dal badal kanoon’, was passed by parliament in 1985, in the aftermath of Mrs. Indira Gandhi’s assassination, by Mr. Rajiv Gandhi’s Congress government who enjoyed three-fourths majority in parliament. The law was amended once by the 91st Amendment in 2003 under Atal Bihari Vajpayee’s NDA Govt.
Functioning of the law
The 52nd amendment, containing the anti-defection law, of the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. An elected member of parliament (MP) or state legislature (MLA) is considered to have defected, in case he either voluntarily resigned from his party or disobeyed the directives, in the form of whip issued by the party, on a vote. Hence, the elected members must not vote or abstain on any issue in the parliament against the party’s whip. This whip issuance needs profound probing in terms of freedom of expression and liberty.
Independent members, elected without any party ticket, are also disqualified if they joined a political party after election. A nominated member can be disqualified if the person joins any political party after the expiry of six months from the date of nomination.
The law also made a few exceptions. The law initially permitted splitting of parties with a faction claiming minimum one third members as a separate group, but that has now been outlawed with the constitutional amendment in 2003. Also, a party could be merged with minimum two third members into another political party. The members may decide to join the newly formed party or function as a separate group. Further, any member elected as speaker or chairman can resign from his party, and rejoin the party after demitting that post.
The law states that only the presiding officer i.e., Chairman or the Speaker of a House, can make decisions on disqualification of a member under this Schedule, and his/her decision is final. If a question arises on the presiding officer on the subject of disqualification, then the decision shall be made by a newly elected presiding officer. The law states that the Presiding Officer’s decision is final and not subject to judicial review. The Supreme Court struck down this condition partly and held that no judicial intervention shall be made until the presiding officer gives his order. However, the final decision can be appealed in the High Courts and Supreme Court.
The Intent of Law
Assuming the right intent of lawmakers, the legislation was aimed
● To reduce the power of money used for alluring elected member to make or break a government and strengthen parliamentary democracy by prohibiting floor-crossing.
● To bring stability to the government & political parties; and not let the government held at ransom on few elected members.
● To make elected members more responsible to the group of voters who have voted due to loyalty to the party.
● To make the elected member loyal to the political party, on whose party symbol the person got elected to the house.
However, with hindsight, outlawing party defections invites observers to speculate about the framers’ intentions. Was it to produce competitive party systems or to consolidate power within existing parties? (Kenneth Janda 2009). The author may like to believe that the law was proposed with some wrong intentions, and besides that it has led to unintended consequences including an autocratic party system, quelling of dissent and making of false leaders. Let us analyze why the anti-defection law, even though looking so promising and attractive, can compromise the democratic system.
Making of Undemocratic System
Freedom to vote
The first casualty caused due to this law is prohibition of elected members to vote within the house as per their choice, conviction and conscience. Freedom to vote or abstain from voting as per conscience is very much part of the constitutional right under Powers, Privileges and Immunities of Parliament granted to the members of parliament.
Article 105(2) of Constitution of India has the following provision: “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”
Freedom to vote guaranteed by constitution to the elected members of the house are made so sacrosanct in the constitution that even a court of law cannot question or interfere in the discussion of any vote in the parliament. When the members of house are exempted from any proceedings in any court which are constitutional authorities, how can they be made liable to the decision to vote on any issue to a political party which is not a constitutional body?
This law has led to a situation where the political party has been given a higher decision making power than the parliament and court. Hence, the anti-defection law has taken away the freedom to vote in favor or against or abstain from voting from elected members’ rights, which is essential to fulfill the role of a parliamentarian.
Freedom of speech
As per definition given by Merriam-Webster dictionary, vote is “usually formal expression of opinion or will in response to a proposed decision; especially one given as an indication of approval or disapproval of a proposal, motion, or candidate for office”
Hence, vote is a form of expression and as per Powers, Privileges and Immunities of Parliament and its Members, freedom of speech is constitutionally guaranteed. Article 105(1) and Article 105(2) of Constitution of India have the following provisions
105(1) “Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.”
105(2) “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”
The elected members are expected to discuss all the issues in the house and sort out their differences in a democratic way. Even if we assume that all the issues are sorted democratically, although this assumption is highly questionable, within the party, it is highly unlikely that none of the party members come up with different opinions on the proposed law. In the extreme scenario, when not even a single member within the party has a different opinion on the proposed law, then party members other than the leader are left with no reason to attend the parliamentary proceedings. Further, the power of voting in the house by the individual member has no meaning left and voting power can be given to the party leader on behalf of party members.
In case a member of the party proposing the law has some differences on the proposed legislation and (s)he is convinced of his own opinion, and the member can convince the opposition party on the proposal under discussion in the house, even then the member cannot vote as per his conscience, against the respective party issuing the whip, laying down the party line.
Once the issue is raised in the house, individual members must follow the party line without any deviation, as his/her own voting action is decided by the party. In such a situation, the anti-defection law is unreasonable where the member is against the proposed law but still has to vote in favor of the bill. In case any party member believes that the proposed law in the house is unreasonable, even then the member of party proposing the law can not raise voice against the bill as the member must vote as per party decision. In such a scenario, the party member is not left with any freedom to show verbal dissent on the floor of the house as it will not affect his action at the time of voting.
With such a geographically and demographically diverse nation, it is highly unlikely that any proposal can serve all the constituents of its elected members. Hence, not allowing any dissent by a party member in the form of speech or vote within the house is strangulation of the democratic system, and it is against the fundamental principle of democracy.
The courts have regarded voting by ordinary citizens as a part of right of speech to express their opinion. The individual citizen’s freedom of speech granted under Article 19 has reasonable restrictions, but the freedom of speech guaranteed by constitution to the elected members of legislative houses are much more wide. (Kartik Khanna & Dhvani Shah 2012). So much special privilege is given to the elected members that even the judiciary cannot question or interfere in the parliamentary discussion. Anti-defection law is strange as it results in an inconsistent situation that elected members are more restricted tin the exercise of their right of speech through voting in the house than an ordinary citizen’s right to speech outside the House.
Collective responsibility to the House of People and No confidence motion
The constitution of India has specific provisions for the appointment of Prime Minister along with the council of ministers. Further, it provides the responsibility towards the house of people i.e., Lok Sabha. The Constitution of India has the following provisions:
Article 74(1) “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.”
Article 75(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
Article 75(3) “The Council of Ministers shall be collectively responsible to the House of the People.”
The President, who is the head of the executive, shall act on the aid and advice of the Council of Ministers with the Prime Minister as its head. The President shall appoint the Prime Minister and Council of Ministers on advice of the Prime Minister. Further, the Council of Ministers shall be responsible to the Lok Sabha. Thus, the council of minister along with Prime Minister cannot continue in office once they lose the confidence of the House of People.
The parliamentary procedure allows members to bring no-confidence motion against the Council of Ministers i.e., the Government to test the confidence of the parliament. In case no-confidence motion is passed by a majority of the members, it results in the removal of government and resignation of the Prime Minister along with the council of ministers.
With the anti-defection law in place, the no-confidence motion has very limited meaning. If a single party wins majority in the house, the party will not allow the government to fall with its power of issuing whip under the anti-defection law. The no-confidence motion in parliament will become equivalent to no-confidence motion within the political party.
No confidence within the political party structure has no meaning as most of the political parties are feudal, as discussed in previous sections, without any inner democratic processes. the political party remains a voluntary organization and not part of the governance system. The founding father of the constitution did not envision a stable government for 5 years without accountability, instead the stability of the Parliament was planned for 5 years with the confidence of the members of the Lok Sabha.
On the basis of suggestions by members of various political parties, Dinesh Goswami Committee on Electoral Reform had suggested that the anti-defection law should be only applicable in case of motion of confidence, no-confidence and money bills (Committee on Electoral Reform 1990). However, the fundamental flaw with this recommendation is that the application of anti-defection law, in case of the survival test of government, will still be the violation of Article 75(3) of Constitution.
Under the anti-defection law, the test of government survival can only test the confidence in the government by the party leader issuing the whip, and it will not test the confidence of the house in a free and fair manner by members of the house.
The accountability of the executive is often explained in terms of agency theory, where elected representatives comprising the parliament act as principal and executive acts as agent. The agent is obliged to act as on behalf of principal and principal is empowered to reward or punish the agent for agent’s performance. (Manuel Sanchez De Dios 2012) The fundamental idea of the anti-defection law is that the origin and survival of the executive are separated from those of the legislature due to the reason that the government survives because of the whip issued by the party. Hence, the punishment power of the principal i.e., Parliament is taken away. Accordingly, the accountability of the executive towards the Parliament gets affected.
Hence, the anti-defection law has compromised the parliamentary confidence for survival test of government.
Separation of executive and parliament resulting in diminished executive accountability
The basic structure concept was innovated and it has continuously evolved through various rulings of the Supreme Court of India. The separation of powers between executive, legislature and judiciary is part of basic structure of the constitution. Keeping judiciary aside, the separation of power between legislature and executive may have been diluted, unintentionally, due to the anti-defection law.
The executive, which constitute PM and the council of ministers, may have forceful impact on the legislature with anti-defection law. The executive, ideally, should be elected by the majority party members (but many times they are nominated by party high command), are the most powerful members of the majority party, and the executive necessarily brings law after discussion with the party high command. The same high command issues the whip to vote in a particular manner for the issues under discussion in the parliament.
Thus, the party leader becomes more powerful, above legislature and executive, by legal power vested to issue the whip for or against the executive proposal. The survival of the Prime Minister and the Council of Ministers is dependent on the confidence of the party leader, with power to issue whip. Hence, the anti-defection law ensures that the executive has the forceful power, directly or indirectly, through party leader, on the party members constituting majority in the legislature.
In J.S. Mill’s view, the proper function of a representative assembly or parliament is to watch and control the Government i.e., executive; to throw the light of publicity on its acts, to press for a full explanation and justification of all questionable items; to censure them, if found condemnable, and to expel them from office, if Government’s men abuse their trust, or fulfil it in such a way that conflicts with the deliberate sense of the nation (John Stuart Mill 1861). Thus, if such a power to expel the executive is taken away from the parliament, then the role of the parliament diminishes. This further leads to reduced accountability of the government towards the parliament.
If we consider a political party with more than 50% seats in the house, can any law proposed by the executive fail in the house? Absolutely not! Hence, the democratically elected government can become an autocratic government, as the survival of the executive is dependent on the party instead of the parliament. The majority political party will make sure, through anti-defection law, that the elected members constituting more than 50% votes in the house will have no right to dissent, and will always vote in favor of executive proposal.
According to political scientists, the anti-defection clauses make political parties part of constitutional design in a manner that impacts the organization and behavior of the executive and legislative branches (Csaba Nikolei 2011). Hence, the fundamental structure of the governance system changes due to change in relationship between the executive and legislative branches. The Supreme Court of India has given multiple rulings stating that the basic structure of the constitution cannot be altered even by the parliament.
Hence, the separation of powers between executive and parliament is diminished due to the legal power vested with the party leader, ensuring survival of government.
Subverting right to dissent and the making of undemocratic parliament
Renowned intellectual Noam Chomsky states that: “If you believe in freedom of speech, you believe in freedom of speech for views you don’t like. Stalin and Hitler, for example, were dictators in favor of freedom of speech for views they liked only. If you’re in favor of freedom of speech, that means you’re in favor of freedom of speech precisely for views you despise.” (Mark Achbar and Peter Wintonick 1992)
Common understanding shows that the right to dissent is fundamental to deliberative democracy. Dissent is not liked by any individual and more so by a political party due to the perception of indiscipline and no-cooperation, a sign of political instability and lack of cohesion. However, can the parliamentary democracy be subverted to ensure a disciplined, stable and cohesive party?
The fundamental reason to classify a nation as a democratic nation is not just due to its democratic election process, but most importantly through democratic decision making process. The parliament, which is the supreme body and temple of democracy in the nation, to run a democratically elected government must also operate in a democratic manner.
The methodology of operating the parliament by the elected representatives must also be democratic with their individual rights enforced. The anti-defection law makes the proceedings of parliament undemocratic, as members have no right to express their individual opinions, including the right to vote in favor or against or abstain from voting on any issue.
The curtailment of freedom to vote as per individual elected members’ opinions directly affects the right to dissent in the democratic system. Hence, the anti-defection law is contrary to the fundamental rules of democracy, which respect dissenting views and come to consensus through discussion.
Members’ diminishing accountability to constituency destroying the citizens’ right to have representative
India is a democratic nation as defined in the Constitution, this means that every eligible voter has the right to participate in decision making through his/her representative. Article 81(1) (a) of Indian constitution requires that the house of the people i.e., Lok Sabha, shall be chosen by direct election from constituencies in the states. Hence, the members of parliament are elected from their respective constituencies and participate in decision making process through parliamentary procedure.
The right of individual citizens to have their representatives participating in the decision making process through discussion and voting in parliamentary process is infringed upon by the anti-defection law. As argued in the previous sections, the voting mandated by the anti-defection law prohibits the citizen’s representative to participate freely in the decision making process, thus undermining the right of the citizen in a democratic system.
There are competing interests on most of the issues in large country like India with diverse geography and population. Any party or parliament many times overlooks the interest of smaller groups/constituencies, and the representation of interests of smaller groups/constituencies is the role of the elected member from the respective constituency. The individual citizen’s right to have a representative, in the form of member of the house elected from the respective constituency, to work in the interest of constituency is infringed upon by the forceful anti-defection law, as they becpme legally accountable to the political party.
Some may like to argue that the party itself will represent the constituency’s interest. One study called this as the legislator’s dilemma: “Legislators face the following options when voting on policy decisions. First, they can choose to support their voters and stand a good chance of re-election. Second, they can consistently support their party and vote with their party on policy issues, thereby ensuring their ability to rise in power in the party, attain nomination for the next election and seek other benefits as a virtue of their loyalty and status in the party”.(Kenneth Janda 2009)
A Rajya Sabha member had once stated that due to anti defection law “A member may be unable to express his actual belief or the interests of his constituents” (M R Madhavan 2009).
This is due to the fact that the legal accountability of an elected member towards the party is powerful, due to anti-defection law, leading to loss of membership in the house. In comparison, the accountability of elected member is weak towards the people of respective constituency, because answerability of the actions in parliament will be evaluated only at the re-election time after every 5 years.
Social scientist Mr. Yogendra Yadav has opined that the anti-defection law has “left little discretion with an MP or an MLA who does not wish to risk losing her or his seat. Hence, much of the derivative expectation on the mandate and role of an individual legislator is now redundant in our context.” (Yogendra Yadav 2008)
The anti-defection law has made the individual elected members to be more responsive towards the party decision than the interest of the constituency represented by the member. Because the instance the elected member diverts from party line in voting on any issue within the house, the member will lose the seat.
Consider a situation where the representative from the constituency is elected, but his/her right to make decisions during the lawmaking process is undermined or taken over. Then democracy will have no meaning and elected representatives become only rubber stamps for the party’s/party leader’s decision.
Anti-defection law results in a similar scenario, wherein power of the elected member is transferred to party/party leader to make decisions on his/her behalf, thus resulting in an undemocratic system of decision making.
Hence, the anti-defection law significantly dents democracy itself leading to unwanted consequences and loss of representative voice (vote) by smaller groups with different agendas.
Government stability and Party Discipline at what cost?
One of the main aims of this law is to bring stability to the government and political party. Historically, autocratic governments, without any outside military threats, are the most stable governments with least accountability to the people or their representatives.
Article 83(2) of the Constitution of India clearly mentions that “The House of the People i.e. The Lok Sabha, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting…”. Hence, the stability of Parliament was already understood by the framers of Constitution and survival of Government was made contingent on the confidence of the house to maintain the accountability.
Article 75(3) of the Constitution states that the Council of Ministers shall be collectively responsible to the House of People i.e., Lok Sabha. It implies that all the Ministers shall be collectively answerable and responsible to the Lok Sabha for the policies and decisions of the government, even in the case of a decision taken related to a single ministry.
The Council of Ministers works as a team, and if a member of the council of ministers does not agree with the decision of the cabinet, he/she should resign from the council of ministers. Thus the council of ministers swims or sinks together.
In a democratic system, accountability of government is given precedence over the stability of government. Even stability of the government for a five year period cannot be justified at the cost of accountability towards the representatives elected from respective constituencies. The intent of the constitution is very clear that collective responsibility towards the members of parliament elected from respective constituencies, lies only on the council of ministers, and not with the party.
Thus, stability of the government and party discipline cannot and must not be enforced at the cost of the responsibility towards the elected members of parliament.
Are Political parties part of Governance System?
The constitution does not mention the political party other than 10th schedule in the anti defection law, (National Commission To Review The Working Of The Constitution 2001). The origin of the political party in Indian political system comes from the rule book of Election commission for election process, and it was later introduced in the constitution with the 52nd amendment.
Political party is a voluntary organization that participates in politics and it was, and still is, not a mandatory criteria to participate in the electoral process. So, why should the political party be a mandatory criteria for legislative process?
Further, the law commission report finds that the parties in India face a number of challenges not limited to decline in commitment to their ideological orientations and welfare of the masses, but also factionalism, doggedness, and agitational politics. Also, parties have shown behaviors that are unprincipled and unconcerned about the welfare of the masses. The leaders have been affected by communalism, caste, community or religious biases and having links with mafia groups, criminals, senas, and militant or fundamentalist organizations (National Commission To Review The Working Of The Constitution 2001). This raises the further question on the objective of the anti-defection law, and handing over the decision making power of members to the political parties plagued with so many vices.
The constitutional principles, without any contradiction, gives the policy making power to the executive and executive is only responsible towards the parliament constituted by the elected representatives. Now with the anti-defection law in place, the executive is bound to act only as mask of the party leader, as the passage of law depends on the direction of the party leader issuing the whip.
Thus, the government becomes a form of oligarchy system with few party leaders deciding the survival of the government. The problem becomes exacerbated when a single party has majority within the house and the whole house will act as a rubber stamp and nothing can stop the executive, acting as the mask of the party, to pass any law. Further, the role of the parliament with its elected members becomes limited to the formality of presenting the law in the house, and the decision is bound to be taken by the party outside the house. In such a scenario, the country is run by the party leader, external to the parliament, instead of the elected members of the parliament.
Hence, the anti-defection law is fundamentally flawed by forcing party decisions on the parliament.
Money power use in parliamentary processes
One of the most important reasons presented, to bring the anti-defection law, was to curb the power of money after election within the house. The horse trading and unstable government caused by money power and bribery was said to be rampant in the cross voting.
Author would like to raise a question, is the power of money reduced in the politics after passage of anti-defection law? The answer can be subjective as actual or estimated amount of money play or the quantum of money used was never disclosed to public.
One answer can be that money power has been reduced within house voting for passing legislation and the survival of government. The money power remains in play after election process, especially in the case of coalition government to get favorable voting from alliance partners. Money power, probably with larger amount than in the earlier system, is paid directly to the high command than to individual members to get favorable voting in the parliament. The situation explained in the second answer rules out bringing coalition partners under anti-defection law.
Many would argue that coalition partner should also come under anti-defection law. Also, in case of single party majority, anti-defection law may lead to less money usage to get parliamentary support after election. In any case, can reducing the money power for parliamentary support be a reason to make a democratic institution, the parliament, an undemocratic institution?
Undoubtedly, the money power remains significant in politics and election process. Also, as there is money power play in the election process, can there be any law to restrict the voting by individual citizen in the election process to reduce the money power? Possibly, imposing restriction on the citizen to vote with specific rule can reduce the money power play in election process, but that can only lead to undemocratic system. Similarly, anti-defection law probably might have restricted money power in the decision making process, but certainly it has stifled the democratic process within the parliament. Hence, justifying a law restricting the voting to curb the money power is highly unreasonable.
Member using party support to win election
During the election process, the candidates try to get tickets from political parties. It helps them to improve the chances of winning the election due to the reason that a section of population votes in favor of the candidate based on their party affiliation.
The argument for keeping the anti-defection law is that people vote in favor of the candidate with party ticket due to party loyalty instead of exerting choice to choose the candidate. Hence, defection on the floor of house betrays the trust of the people if anti-defection law is not in place. This rationale is fundamentally flawed due to two reasons.
Firstly, no quantitative proof has been provided that people have voted for the candidate due to their loyalty towards the party. Secondly, even if the people are voting due to the reason of party loyalty, we must ask ourselves is the action of the electorate right or wrong? Many people may want to vote for the reason of association of family, caste, religion, etc., but is it right to give legal recourse, to the family leader, caste leader or religious leader, for their wrong decision to make their choice?
As per the constitution of India Article 81 1(a), members of the Lower House of Parliament must be chosen by direct election from territorial constituency. As per the design of Indian constitution, the elected members, instead of the political party, are the fundamental elements of parliamentary democracy with power to control and monitor the executive action. Hence, the idea of fixing defection based on party rule seems unjustifiable.
Further, the argument given for anti-defection law is that members should remain loyal to the party, whose election symbol is used for winning the election, seems to be unfair, as the individual members are held accountable for their responsibilities in their constituency during re-election process. And it is not the party that wins or loses election in any constituency, but it is the individual that fights the election, and the party ticket is only an additional support. The funds for the development of constituency is not given to the party but it is given to the individual elected members.
Hence, the argument that the elected member wins the election due to electorate supporting party, although questionable, can not be used as argument to implement anti-defection law.
Should elected members follow party manifesto?
The judiciary has argued that elected individual member must vote in favor of the party direction, as the issues under house discussion are usually part of election manifesto of the party. But, this argument does not hold ground, as no election manifesto provides the detailed law that is going to be proposed once government will be formed after election.
Every law and every issue discussed in the house have some nuances and minute details. As the phrase ‘the devil lies in the details’ has important connotation on this issue. Firstly, are the individual members not allowed to make their opinion on the basis of detailed discussions in the house? The participants at a workshop organised by PRS Legislative Research the legislative members, argued that the anti-defection law prevented MPs from critically examining government proposals. (Vidya Subrahmaniam 2010)
Secondly, the elected member may have joined the party only due to one part of the election manifesto and not very supportive of some other part. Hence, the argument seems to be invalid to justify the party’s direction on the basis of election manifesto.
As per the Election Commission “A manifesto is generally defined as a published declaration of the intentions, motives or views of an individual, group, political party or government whosoever issues it.” As the definition suggests, manifesto is only an intent, motive or view and this can not have legal sanction as it reflects only the broad views of ideas. Also, intent is only guidelines without any specific details which can be implemented in multiple ways, depending on the views on the issues under consideration.
Further, the recent election has shown that election manifesto matters little to political parties, like repetition of promises made in earlier election manifesto. In one case, the election manifesto was published on the same day as that of actual election, can that manifesto become the basis to implement defection law? (Suvojit Chattopadhyay 2014) Also, in some case the political party did not published any election manifesto, still the anti defection law remains valid. (The Times of India 2015)
The judiciary and legislature, with their esteemed position in the world of law, understand the law with all details on the merit of the law. Hence, giving any legal sanction to election manifesto is unreasonable.
International experience with anti-defection law
Most of the developed nation including USA, UK, Canada, France, Germany etc., does not have anti-defection law under the rule of parliament and floor-crossing along with dissent is integral part of democratic system. The consequences of defections are left to the parties, to take care of their intra party discipline, and the individual elected representatives are expected to defend their decision to the party and in the respective constituency. The constituency will take necessary action, elect, reject or re-election.
The Bond vs. Floyd and Gewertz vs. Jackman case in USA provide a useful learning. It says that dispute between the political party and its member would fall under the private affair and the political party has the privilege to expel the member with conflicting philosophy. It was argued that the parties have not elected the legislator member and hence, the party has no control over legislature membership. However, the political party has the right to expel the member from party membership to maintain discipline. (Kartik Khanna & Dhvani Shah 2012)
Further in Barley v. Luzerne County case, the US District Court of Pennsylvania judgement upheld the legislator’s right to change its political Party membership, different from the party ticket he contested elections, after the election process. (Barley v. Luzerne 1995)
Two democracies i.e., New Zealand and South Africa, have abandoned their anti-defection law. In South Africa, the anti-defection law was passed in 1996 and it was abandoned in 2002 after dispassionate evaluation, despite public emotional opposition to floor crossing. Further, Booysen supporting the end of anti-defection law in South Africa states that, international literature indicates that there are numerous struggles to limit defection on the basis of likely contravention of the mandate of original election and equally comparative studies shows that restricting defection frequently end in travesty. (Kenneth Janda 2009)
In New Zealand, the bill was passed in 2001 with sunset clause resulting in expiry after two elections in 2005. The Solicitor General of New Zealand commented that the bill provided wide discretion to party and party leader and it does not protect the legitimate dissent by an individual member against the party the direction. (Kenneth Janda 2009)
Many underdeveloped countries, which have adopted democracy during second half of last century, including Bangladesh, Kenya etc., have made anti-defection laws. These early stage democracies have less developed political systems and their political party systems are unstable, due to corruption and personalistic political systems. This is specifically relevant in Indian political system where caste, family, gender and religion are used at the election time to get electorate support.
However, India should follow the experience of most established democracies, and such a law should be discarded, due to its undemocratic values of curtailment of freedom of expression and association.
Anti-defection law was adopted by India to bring government stability and reduce money power in parliamentary politics. However, the law changes the basic structure of Constitution by changing the relationship between executive and legislature, by reducing the accountability of executive towards the parliament. The law diminished the freedom of speech and vote, thereby curtailing the constitutional right granted to the elected members. The anti-defection law has minimised the accountability of elected member towards respective constituencies, thereby taking away the democratic right of the citizen to have representatives in the decision making process.
It has made political party, an undemocratic organization with lot of vices, part of the constitutional system and made the house proceeding including no confidence motion meaningless. Arguably, the problem of government instability and money power use in politics still remain prevalent even after implementation of anti-defection law. In any case, the government stability and corruption can not be used to curtail the fundamental of democracy itself.
In general, evolved and matured democratic nations tend to pass laws that permit or promote competitive party politics. Hence, anti-defection law in India is not good for the country and had led to many negative unintended consequences. So, the Schedule X of the Constitution of India with anti-defection law must be repealed immediately to make India a better democracy.
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