Tharoor Line | Toothless anti-defection law

Maharashtra CM Eknath Shinde along with rebel Shiv Sena MLAs arrives for a special session of Maharashtra Assembly, at Vidhan Bhavan in Mumbai, Sunday, July 3, 2022. Photo: PTI

The toppling of the Maha Vikas Aghadi government in Maharashtra offers many lessons to political observers, but one that people need to pay more attention to, is that it confirms the total irrelevance and ineffectiveness of the anti-defection law, officially known as the 10th Schedule of the Constitution.

There is an English expression that says “the road to hell is paved with good intentions”.

The Anti-Defection law, enacted as the 52nd Amendment in 1985, is a prime example of a bad law that was passed with good intentions. It was intended to stop the “aaya Ram-gaya Ram” practice of legislators crossing the floor in pursuit of power and profit, which saw state governments (and two central governments) between 1967 and 1985 rise and fall like skittles. The idea was noble, and rested on sound principles: governmental stability matters; people must stay loyal to the party on whose platform they contested; the intent of the voters must not be betrayed by defections. When the law was first explained by its proponents, there was widespread support, even enthusiasm, for its passage.

But how has the Act worked in practice? It has not eliminated defections, as we have seen in recent years in Uttarakhand, Manipur, Gujarat and now Maharashtra. What it has done is to change retail defections to wholesale, since (after the 91st Amendment of 2003) two-thirds of the MLAs need to defect for defections not to attract disqualification. It has also raised the price for defection, since a well-heeled party can always induce a small group of legislators to defect by promising them the resources to win back their won seats in the subsequent by-elections.

Ruling parties have great influence on how rigorously the law is actually applied, especially through their sway over a Speaker, whose powers are extensive and unchallengeable. These include the power of delay: anti-defection petitions, submitted by betrayed Opposition parties, can be kept in abeyance, without any decision, for months or even years if it suits the interests of the ruling party that the errant defector not be expelled.

Maharashtra CM Eknath Shinde and Deputy CM Devendra Fadnavis address a press conference, in Mumbai, Thursday, June 30, 2022. (PTI Photo/Shashank Parade)

Worse, where the law does work is in stifling the voice of the individual legislator. Since every single vote in Parliament sees a whip being issued, however trivial the subject of the Bill, there is no room for honest differences of opinion. Disobeying a whip offers grounds not just for disciplinary action by the Party, but expulsion from Parliament altogether. No MP who has struggled and strived (and spent) to get elected to his seat lightly places it in jeopardy. His convictions become secondary to the party line. The “argumentative Indian” is often on display in both Houses, but only when he is arguing strictly according to his party’s position.

As a result, the anti-defection law has reduced each MP to a cipher during every vote, a number to be counted by his Party whip rather than an individual of ability, conviction and conscience.

The wishes of the political party (an entity not mentioned in the Constitution) take precedence over the mandate of the voter. This has other effects: it reduces the need for each MP to study an issue thoroughly and come to a position on it, since his position no longer matters unless he is part of the party leadership.

This is, in many ways, a travesty of the parliamentary process. In the UK, where the system originated, no whip was issued even on so fundamental a vote as to whether to authorize the Government to proceed with the Brexit negotiations. Earlier, no whip was issued on whether the UK should support the US in the Iraq war. Dissent was freely and honestly expressed on both sides of the aisle. Such freedom is unknown to the Indian MP after the passage of the Anti-Defection law.

My parliamentary colleague Manish Tewari had introduced in 2010 and reintroduced in 2020, a Constitution (Amendment) Bill which, if enacted, would require that whips can be issued only for legislative business that threatens the stability of the government, like a Budget Bill or a no-confidence motion. Of course, the chances of its passage are zero. The establishment always prefers a status quo it can manipulate.

New India on display

I spent four days in the UK last week attending the India Global Forum, an annual conference that is increasingly being seen as a flagship event for Indo-UK relations. The British government certainly takes it seriously, since a galaxy of Cabinet Ministers was delegated by Prime Minister Boris Johnson to attend and speak, including the two best known ones of Indian origin, Chancellor of the Exchequer (Finance Minister) Rishi Sunak and Home Secretary Priti Patel. India normally sends two or three ministers, I was told, but two of the designated attendees this year, Foreign Minister Jaishankar and Coal Minister Pralhad Joshi, had to cancel at the last minute, leaving a mundu-clad Rajeev Chandrasekhar to be the sole Indian minister on display.

But the bulk of the Indian participants were businessmen and entrepreneurs, including no fewer than fourteen heads of India’s “unicorns” – recent start-ups now valued at over a billion dollars. These whip-smart young men and one woman (Falguni Nayar) are in many ways the flag-bearers of the “new India” the Modi government rightly wants to display to the outside world. If the image of our ruling party within India is too often dominated by saffron-clad self-proclaimed holy men spouting incendiary rhetoric against minorities, that was certainly not the India the government wants the world to see. Instead, we have young and successful entrepreneurs showcasing in London the opportunities India offers to people of ideas and initiative. Their animated presence at panel discussions served to promote their businesses but also to define the idea of India’s future potential to the Brits attending the event. If only our government realised that this is also what Indians want to see at home – action-oriented business leaders inviting young people to join them in fulfilling their aspirations, not hate-speech and bulldozers – how much better off our country would be! 

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