The anti-defection law continues to damage Indian democracy

With assembly elections three months away, the confidence motion’s outcome will be unimportant in Puducherry’s history. But the event will highlight the failure of the anti-defection law and raise an important question. How long will a law which continues to stifle debate in our legislatures continue to be a part of our Constitution?

The anti-defection law will fail again on Monday, this time in Puducherry. Chief Minister V Narayanasamy, who heads the Congress government, has been asked to prove its majority in the Vidhan Sabha. If past proceedings in other assemblies are any indication, the Puducherry Vidhan Sabha may witness unruly scenes. After the resignation of five Congress legislators, the Vidhan Sabha has 27 Members of Legislative Assembly (MLAs). The Congress has the support of 13 MLAs, including the Speaker, who can only vote to break a tie. The opposition has 14 MLAs, including three MLAs nominated by the Centre.

Each side will try, till the end, to cajole or coerce MLAs to switch their political loyalty. Parliament made the anti-defection law to prevent such defections, and bring stability to governments and probity in politics. But in the last 35 years of its operation, the law has been entirely unsuccessful in its purpose. A law that does not accomplish its goal is not a new phenomenon in our country. But just because it fails in its purpose does not mean that it has not done any damage.

The anti-defection law has been singularly responsible for stifling debate in our Parliament and state legislatures. For example, approximately 250 Members of Parliament (MPs) in the Lok Sabha have declared their profession as farmers. They are from different political parties and represent people across the country. During the debate on the three farm bills, they could not support or oppose these bills based on their knowledge and experience of the agricultural sector.

The anti-defection law empowers political parties to force their views on MPs elected on their ticket. Any disagreement with the party can result in MPs losing their seat in the legislature. So they have a choice — voice the views of their parties and continue their parliamentary tenure or speak their mind and risk losing their seat in Parliament.

In the absence of an anti-defection law, MPs are free to vote based on their conscience on all issues. Just recently, in the United States, seven Republican senators voted to convict President Trump by breaking ranks with their party. Two months ago, in the United Kingdom, 55 MPs from Prime Minister Boris Johnson’s party voted against the government’s proposal for stricter lockdown restrictions.

The noble purpose of the anti-defection law is to bring stability to governments. So it stands to reason if it was limited to votes deciding the fate of a government. But the law allows political parties to disqualify legislators for voting against the party line inside the legislature and anti-party conduct outside it. The law is even applicable to Rajya Sabha MPs, who have no mandate to vote out a government.

Over the years, parties have also used the anti-defection law as part of a toolkit to weaken their opposition or topple a government. If a political party has a fewer number of legislators in a state, a larger party lures two-thirds of its MLAs into its fold — a practice permitted under the anti-defection law. If that fails, some MLAs are convinced to support a government and pressure is exerted on Vidhan Sabha Speakers to delay their disqualification. The trend these days is to convince legislators to resign.

After the Supreme Court ruled that the decisions of Speakers related to anti-defection come under judicial review, most of them get challenged before the courts. Sometimes, the court process takes time. Take the case of Sharad Yadav. The Rajya Sabha chairman decided his disqualification in three months in 2017, and the case is still pending before the Delhi high court. On other occasions, defection cases lie forgotten after the political crisis is averted. Last month, no one appeared on behalf of the dissident Rajasthan Congress MLAs who had approached the high court seeking protection from the anti-defection law.

With assembly elections three months away, the confidence motion’s outcome will be unimportant in Puducherry’s history. But the event will highlight the failure of the anti-defection law and raise an important question. How long will a law which continues to stifle debate in our legislatures continue to be a part of our Constitution?

Chakshu Roy is the head of legislative and civic engagement, PRS Legislative Research