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Threatening Indian democratic system: Case of Anti-Defection Law about:reader?url=http://roundtableindia.co.in/index.php?option=com_c...

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Santosh Kumar

Published on 09 September 2016

Santosh Kumar

Abstract

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

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Introduction

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

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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.

Exceptions

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.

Authority

The law states that only the presiding officer i.e., Chairman or the Speaker of a House, can

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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.

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Conclusion

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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~~~

Santosh Kumar is an Engineering and Management graduate from top institutes..

Illustration by Nidhin Shobhana

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