Now that the dust has settled in the Mantralaya of Maharashtra and Shinde ji has formed a stable government with BJP let us try to understand the term ‘Defection’ and the ‘Anti Defection Law’. It is extremely important to do this soul searching because I find both of them standing against the true essence of democracy.
History:
The Anti Defection Law has a history. It had to be enacted because politicians of yesteryears were making a mockery of our democracy by vigorous horse-trading of elected legislatures and parliamentarians. The phrase Aaya Ram Gaya Ram became popular in Indian politics after a Haryana M.L.A, Sri Gaya Lal, changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office, profit or other similar considerations.
What is the Anti-defection law?
The Tenth Schedule or the Anti-defection law found its way in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote or goes against the party whip. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.
But there are exceptions to this law - legislators may change their party without the risk of disqualification in certain circumstances. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification. So you can now very well appreciate that though isolated horse-trading was discouraged, en-mass stable trading was not! And again the same law does not allow these more than 2/3 members form a new party, or claim their parent party and its symbol!
So, what is the problem?
The law makers of this anti-defection law felt that by enacting this law they will provide a stable government by ensuring the legislators do not switch sides. So, in theory, this must be a wonderful law, and we should have no complaints against it. But unfortunately in practice it not so. This law also restricts a legislator from voting in line with his conscience and judgment while keeping the best interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that member’s vote is based on the decisions taken by the party leadership, and not what their constituents or electorate would like them to vote for.
Let me elaborate on this a bit; legislators get elected on a party ticket and so are expected to remain loyal to the party ideology. If they do not do so they are disobeying the mandate given to them by the electorate. But what if the party is hell bent upon disobeying the mandate of its electorate? Do the individual party members still have to remain loyal to the party? Unfortunately, that is what this law states and so is actually making the party more important than the electorate. So the legislatures are expected to do politics for the party and not for the people who have elected them! A government in the Westminster and Indian Parliamentary system is responsible on a daily basis to the parliament, unlike the American Presidential system who is elected for a full term. The parliamentary system has knowingly traded off stability to accommodate accountability and this is an asset which we cannot afford to lose. The Anti-defection law strikes at the very root of this accountability.
M.Ps and M.L.As are people’s representative first and party’s representatives next. Regarding their roles there are two streams of thoughts:
· The trustee model – the people’s representatives evaluate different policies and exercise the judgments on what is the best course of action
· The delegate model - the people’s representatives are essentially the mouthpiece of their constituency and should reflect their views in parliament and assemblies.
The anti-defection law has succeeded in subverting both these notions and converted the M.Ps and M.L.As into brainless delegates of parties, not allowed to use their minds and their hearts!
This is what we saw in Maharashtra recently. Shiv Sena M.L.As had a pre-poll understanding with BJP. The Prime Minister and the BJP State Chief did the entire poll canvassing in their constituencies and did not allow their own members to fight in these seats, but after getting elected Sena went on to form a government with a defeated opposition. No wonder when these M.L.As went back to their constituency they were asked difficult questions by their electorate, for which they did not have answers. So they were forced to speak out against their own party and eventually split the party. What good is the Anti Defection law serving now? Is it not going against the mandate of the people?
Just as a government is accountable to the M.Ps and M.L.As, they in turn are also accountable to their respective constituencies and thereby to the people. If these elected representatives have to obey their party whips every time then where is the room for discussion? The ruling party obviously has the numbers that is why it is ruling. So the parliament and the assemblies instead of becoming forum of debate and discussion become rubber stamps of the ruling party! A whip invariably weakens the accountability of the elected representative towards his electorate. If forces him/her to vote for the party and not for the people who elect them. Party diktat invariably becomes more important than the will of the electorate. This cannot be the democratic constitution which our forefathers dreamt of.
Lack of inner party democracy in family governed parties mean that only a selected few are considered smart enough to take decisions. This elite club creates a glass ceiling for the talented in the party and so from time to time these ambitious people defect for greener pastures. These ‘family elite club parties’ lack ideology and so when blind faith on the family chieftain disappears, or when they succeed in negotiating a selling price they defect. Political parties should belong to the people of the country and not to their holy families. They should have elections regularly to choose both their leaders and their policies and these policies should remain constant whether they are ruling the country/state or they end up in opposition. Opportunistic opposition to policies they themselves floated like CAA, Agriculture reforms, or to those which reverberate with the ethos of India like Article 370, Triple Talaq make it difficult for their elected representatives to support, because they know they have to face their electorate soon and will be asked very uncomfortable questions.
So, we do not require a stricter Anti-defection law, we requires more democracy in the country, in the states, in our Parliament, in our State Assemblies and within the political parties. The elected representatives should be seen representing the people who elect them and not the political parties who give then the ticket. Political parties should educate their members on how to vote on each issue but not issue a whip irrespective of the nature of issue. Whips should be restricted only for those votes that determine the stability of the government.
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