Scrap the Anti-Defection Law
Instead of providing stability, the law has undermined our democracy. It is time to scrap the anti-defection law.
Published in the Indian Express
The political crisis in Maharashtra has brought focus back on the anti-defection law. By all accounts, the law has failed to shore up the stability of elected governments. Not only have many governments fallen due to defections in recent times, but the defectors have not suffered any cautionary consequences. There are many ways to thwart provisions of the law: the Speaker can sit on the defection pleas for the term of the assembly; the beneficiary party can facilitate accretion of defectors through money and investigative agencies to hit the magic two-thirds threshold. The voters don’t seem to care about punishing the defectors either - 11 out of the 14 defectors who stood for re-election in the 2019 Karnataka bypolls won on the BJP ticket. Some have thus argued that the way forward is to amend the anti-defection law to fill these lacunae by mandating time-bound decisions by the Speaker and disqualifying defectors from standing for the next election. These proposed amendments like the original law want to consolidate power without necessarily putting in the requisite politics. They may thus help consolidate the leadership’s intra-party power but the underlying aversion to ongoing politics leaves them vulnerable to bigger external powers.
First, it should be obvious that the practice of politics is too wide for any institutional process to fully capture. Politicians are adept at subverting institutional processes for their own ends and there are many possibilities for payoff for defectors outside of elected office alone. Moreover, politics has a rich history of exercise of power by proxy and the disqualified representative may simply choose to have a family member stand in their stead. It thus seems unlikely that these amendments can plug the gap in any substantive manner, especially if the defections have been engineered by the threat of investigative agencies. The anti-defection law and proposed amendments approach the issue of defections from the prism of denying power to the defector, a framing which repeatedly comes up short in the face of a bigger and/or more punitive power. Beleaguered parties may denounce the BJP but in the absence of mobilization of public opinion, these condemnations have at best rhetorical value, moving neither the BJP nor the defectors.
It is obvious that if political parties want to resist defections, they must be able to project (imminent) power themselves. At the same time, out of power political parties must address organizational and ideological infirmities which have made them susceptible to mass defections in the first place. There are only about 4000 MLAs in a country with a population of almost 1.4 billion people. However, political parties tasked with representing the aspirations of crores of people are unable to find candidates who take themselves seriously enough to not cross over to political opponents. In fact the bar is so low that the MLAs have to be physically corralled and phones confiscated to ensure continuation with the Party. This is not idealistic outrage but instead has pragmatic and organizational value. It is one thing for a few individuals to be susceptible to threats and inducement, another for the organization to be vulnerable to mass defections. Individuals can be faulted in the former but the latter calls for urgent introspective and corrective measures at the level of the leadership.
Two measures with both short-term and long-term implications come to mind. First, political parties need ideological clarity and the ability to attract individuals with a sense of purpose and not love of power alone. This ideological depth if reflected in the party organization and its political programs will give members the ability to withstand lean periods of power. Every party has committed individuals; internal party processes must be geared to identify and promote them into leadership positions. This ties into the second issue. Multiple analyses have attributed the political crisis in Maharashtra in part to Shiv Sena’s inability to accommodate the aspirations of its dissident MLAs. The rebel MLAs on their part have spoken of the Chief Minister’s inaccessibility. The MLAs may be opportunistic but there is no question that political parties are failing to create intra-party forums where grievances can be expressed and resolved on an ongoing basis. Internal mechanisms for inner-party democracy - from elections to deliberative forums - are ultimately at the discretion of the party leadership. Scrapping the anti-defection law would provide some institutional leverage to express intra-party dissidence and while it may be more chaotic in the short-term, can lead to greater stability and political strength in the long-term.
Finally, two fundamental questions. In trying to legislate political affiliation - a key freedom in democracy - political parties are giving primacy to legal instead of political battles since these issues inevitably end up in court. This repeated ceding of political power to the judiciary is a serious deviation from the democratic paradigm and must be checked. Second, the anti-defection law has undermined not just the very principle of representation but has also contributed to polarization in our country by making it impossible to construct a majority on any issue outside of party affiliation. Instead of providing stability, the law has undermined our democracy. It is time to scrap the anti-defection law.