Now that secluding legislators in undisclosed resorts to prevent horse-trading has become a post-election norm in India, the need for stringent implementation of the anti-defection law in the country could not be more apparent.
From the perspectives of both party integrity and election ethics, and for the sake of legislative stability, the act of switching parties, once elected, should be proscribed or at the least, penalised.
The Tenth Schedule of the Indian Constitution, commonly known as the anti-defection law, lays down the grounds for such a penalty. It states that a member of House belonging to a political party will be disqualified if “she voluntarily gives up the membership of her political party” or “votes, or does not vote in the legislature, contrary to the directions of her political party”.
The problem, however, is that such a provision not only prevents defection, but also lays grounds to disqualify any legislator who disagrees with her party and does not vote according to its directive.
The Impact On Political Dissent
The party whip, in most democracies, has the responsibility to obtain the assent of all its elected party members. Due to the anti-defection law, in India, the elected members have no choice but to assent.
The whip’s unequivocal authority, resulting from the anti-defection law, serves a resounding blow to the legislators’ voice and vote of dissent. Those who wish to voice their criticism or vote their conscience are inhibited from doing so due to imminent disqualification.
Though the law states that, “if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified”, there is no provision of dissent without the party’s permission.
This problematises reasonable democracy within party lines. Indeed, it begs the question: is it even possible to democratise political parties in India.
Political dissent is essential for any democracy to function. It is the voicing of contrasting, sometimes even conflicting views, wherein lies the appeal of democracy. That is how it is with an individual’s vote of choice and conscience. That is how it ought to be within all political parties.
Without internal democracy, political parties are nothing but hierarchical spaces, ill-fitted to represent the myriad wills of the people.
The Situation In Other Countries Is Different
It would be insightful to look at other democracies in the world and the ownership that their political parties have over every legislator’s individual vote. In the United States, for example, the whip can only try to persuade the elected representatives to vote along party lines.
While the votes are generally in the respective party’s favour, cases of Congressmen going against the whip are neither unheard of, nor uncommon.
India borrows heavily from the system prevalent in the UK, where whips are graded according to the seriousness of the issue at hand. The three-line whip is the strictest and most binding directive issued by the party, generally over matters of high importance such as a vote of confidence or an indirect election.
The crucial difference between the UK and India is that, in the absence of an anti-defection law in the former, the severest punishment that the representative might have to face is expulsion from the party. She will, however, still continue to serve the term as an independent and represent the will of her voters.
In India, on the other hand, it is legally required that the dissenter be disqualified from the seat she won on a party ticket, if the party files such a complaint.
While every democracy has its own set of problems, the truth is that democracies across the world have been able to survive and flourish without a legally binding and arbitrarily penalising whip’s directive.
The anti-defection law, though desirable in spirit, is thus wanting in letter. Although it does keep a check on defection, it also suffocates individual voice within the party ranks. And while it is true that an absence of checks on the legislator’s votes might be a breeding ground for horse-trading, democracy has never managed to survive when it has traded one good for another.
(Manvi is part of the 2018-19 cohort of the LAMP Fellowship. She holds a masters degree in Development Studies from TISS, Mumbai, but her first love remains literature, which she pursued in her undergraduate years.
Shruti is all set to join SciencesPo, Paris, where she’ll be studying politics and public policy, as an Emile Boutmy scholar. Always up for cold coffee, she holds a master’s in Development Studies from TISS, Mumbai, and a bachelor’s in Philosophy from LSR.)
Disclaimer: The views expressed in this article are the authors’ personal views.