The Political Fix: Has the anti-defection law hollowed out India's representative democracy?

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Today, we have a special piece by my colleague Shoaib Daniyal, who writes about the problematic Indian legal oddity that is the Anti Defection Law.

The Big Story: Hollow democracy

The state of Karnataka has presented some top-class political drama over the past fortnight as 15 MLAs of the ruling Congress-Janata Dal (Secular) decided to resign. While, the MLAs claimed they felt aggrieved with the quality of governance being delivered by the administration (that they all had this realisation at the same time was ostensibly a coincidence), the Congress-JD(S) coalition accused them of defecting to the Bharatiya Janata Party in return for large sums of money.

But if the MLAs wanted to help the BJP, why not directly vote for it? Why resign?

The answer: to circumvent a provision of India’s Anti-Defection Law, which makes the act of a legislator disobeying her party an illegal act. Resigning would bring down the numbers in the Assembly and the maths was such that it would allow the BJP to reach the halfway mark – and stake claim to government.

As this convoluted gameplan was underway to circumvent the Anti-Defection Law, in an unprecedented move, the Supreme Court went ahead and undermined the law itself by giving rebel MLAs a choice on whether they wanted to attend the Assembly when the trust vote was underway. This meant that they could ignore the party whip and not attract the charge of defection.

Clearly, the Anti-Defection Law was at the heart of the Karnataka drama.

Legal failure

The Anti-Defection Law was inserted into the Indian Constitution in 1985 by the former prime minister Rajiv Gandhi’s government at a time when Indian politics was decisively breaking away from a model where there was one dominant party (i.e. the Congress). To control legislators in a multi-party polity, the law made defections illegal. The only exception was if a third of a party’s legislators broke away at once (the proportion was later amended to two-thirds).

The stated reason for the law was to control defections and reduce the impact of money and the lure of office when it came to proceedings in the legislature.

To begin with, it is rather easy to see that the law has barely wiped out defections. Instead, politicians have found new ways to defect without attracting provisions of the law. In Karnataka, the MLAs simply resigned rather than vote for the BJP. In both cases, the outcome would have been the same: to destabilise the government. Another new tactic is for the speaker to simply delay decisions in the case of defections. In Andhra Pradesh and Telangana, MLAs who have defected have even gone on to serve as ministers as the speaker carefully plods through their defection cases.

Moreover, the law curiously seems to allow defections if they happen in bulk. In Goa, last fortnight, 10 out of 15 Congress MLAs defected to the BJP. Soon enough, three of the defectors were sworn in to the cabinet. And this was all legal since it met the law’s two-thirds limit.

Additionally, the law has nothing to say at all on the fact that whole parties can defect. The distribution of ministerial posts is an almost banal aspect of coalition politics and discussed openly. Rather than curb political corruption, then, does the Anti-Defection Law simply kick it upstairs, making party bosses the players rather than individual legislators?

Significant harm

Even as there exists little empirical proof that the law has curbed political corruption and impropriety, its side effects appear to have done Indian democracy significant harm.

Almost all modern democracies have a system where a geographical constituency elects a member to a legislature in order to make laws and policy. How a lawmaker then functions there is broadly described using three models in political science.

The first, the trustee model was proposed by Englishman Edmund Burke in the 18th century, and supposes that once elected, a legislator will not function simply as per the mandate of his constituents and will instead vote using his conscience in the larger interest of the nation. The delegate model is the reverse: where the only job of a legislator is to faithfully carry out the mandate of his voters. The third, called the politico model, is an amalgam, which sees a legislator oscillate between being trustees and delegates and maybe best describes the real-world functioning of most developed democracies.

India’s Anti-Defection Law, however, proposes a fourth model, where the legislator represents neither the needs of the entire nation or the voters in his own constituency, but only of his political party.

While breaking the voter-legislator link is undemocratic enough, the Indian model of representation is made even worse by the highly authoritarian nature of Indian parties. There is not one party in India that has a robust system of internal democracy and most are either controlled by a single leader or a small group of politicians.

That these undemocratic entities control India’s elected legislators is a curious inversion of democratic norms that seems to prioritise the party high command over the country’s state Assemblies and Union Parliament.

Devalue democracy

Not only does this weaken the value of a legislator’s elections, it also attenuates India’s system of checks and balances whereby different arms of the government control each other to stymie the emergence of authoritarian rule.

In India’s Westminster system of parliamentary democracy, the legislature already has a rather weak check on the executive, given that the executive is drawn from the legislature (and is not truly independent, like in a Presidential form of government). Nevertheless, the legislature does have the power to vote out an executive using the instrument of a no-confidence vote.

However, the Anti-Defection Law enshrines in law a glaring conflict of interest in this case. In almost all cases, it is members of the executive who control the party. This means they also issue whips that, thanks to the Anti-Defection Law, are binding on legislators when they vote to express confidence or lack thereof in the executive. It’s a Catch-22.

In the case of single-party governments that enjoy a simple majority, this reaches a stage where the instrument of no-confidence lies practically dead. At the Centre for example, Modi and Shah both head the government and appoint the person who issues the BJP’s whips. Given that a backbencher revolt is illegal under the Anti-Defection Law, Prime Minister Modi now has an assured five-year term – which goes against the Parliamentary structure of government adopted by India’s founding fathers.

In other Parliamentary democracies, legislators revolting against their own party is a normal part of politics. In the United Kingdom, on Thursday, four cabinet ministers disobeyed their party and voted against their own government because they disagreed with the party leadership on how Britain was going to exit the European Union. Such a disagreement would be unthinkable and illegal under the Anti-Defection Law regime – and Indian democracy seems much the poorer for it.

As a consequence, there have been calls to repeal the Anti-Defection Law, most notably by Chakshu Roy, who heads the thinktank PRS Legislative Research. Roy argued that “the entire idea of anti-defection tries to solve a political issue through a legal solution”.

This is an obvious point and one that India’s lawmakers should consider. Venal defections, which go against the interests of a legislator’s constituents, are best punished by the constituents themselves at the ballot box. Making elected legislators subservient to unelected party high commands is a case of the cure being quite a bit worse than the disease.

Should the anti-defection law go? Write to rohan@scroll.in

Catch up

The Karnataka shenanigans were true entertainment, with fiery speeches and lawmakers deciding to sleep in the Assembly. The trust vote is now expected to happen today, but who knows what drama awaits?

Former three-time Delhi Chief Minister Sheila Dikshit died this week. She was a vital player for the Congress in the capital’s politics until the very end.

Among the governors who were moved around was RN Ravi, who was put in charge of Nagaland. The choice is curious because Ravi is also the government’s interlocutor in the Naga peace talks.

Germany’s ambassador to India went to visit Mohan Bhagwat, chief of the Rashtriya Swayamsevak Sangh. The visit didn’t go down well with everyone, thanks to the RSS’ history of fascist thought and ideas drawn from Nazism.

Reports, analysis & opinions

Former Chief Economic Adviser Arvind Subramanian responds to critics of his paper saying India’s GDP growth is overestimated. Subramanian doubles down on his conclusions and takes on some of the critiques in a follow-up paper.

Liberals are mistaken in presuming that OBCs and Dalits are opposed to Hindutva. Abhinav Prakash Singh argues that Hindutva offers mobility and political power to the “subaltern”.

The BJP still needs to do much more to convince women to vote for it. Rajeshwari Deshpande says that despite its political dominance, it still has a persistent gender gap.

The government is using off-budget borrowings to fund social sector expenditure. Sapna Das looks at the fine print from the Budget documents.

Dalit Panther leader Raja Dhale, who died this week, was unsparing in his political speech. Suraj Yengde writes about how his piercing contributions have left a tremendous legacy.

Did we miss any reports or op-eds? Do you like/dislike the Political Fix? should we be doing something different? Write to rohan@scroll.in.