The anti-defection law and its effect on politics
By barring members from voting or speaking against the party on any issue, it weakened legislatures. And, as the turmoil in Maharashtra shows, it fundamentally altered the relationship between a politician and the party
In his final remarks before the Constituent Assembly on November 25, 1949, BR Ambedkar said, “The Constitution can provide only the organs of State such as the legislature, the executive and the judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”
The Republic’s legislative history can be split almost equally, with legislatures before 1985 on one side and those after it on the other. Before 1985, our legislators had the constitutional protection to speak their minds. They had the option to disagree with the stand taken by their political parties and vote according to their conscience in Parliament and state assemblies. That year, Prime Minister Rajiv Gandhi’s government passed the anti-defection law, muting legislators’ voices across the country. Ostensibly its purpose was to prevent legislators from defecting and destabilising governments. But the statute’s text indicates its purpose was also to allow political parties absolute control over legislatures.
First, the law prevented legislators from voting against the party line on any issue in the legislature. If its purpose was to curb defections and ensure stable governments, it could have limited political parties to force lawmakers to vote as per its wishes only when the future of a government was at stake. Second, the law did not limit itself to voting. It had a wider ambit, and restricted a legislator from speaking on an issue contrary to the stand of their political party. And finally, it was also made applicable to members of the Upper House, even though they have no say in deciding the continuity of a government. This law has fundamentally changed the nature of Parliament and state legislatures. It has a chilling effect on the speech of Members of Parliament (MPs) in the Lok Sabha and Members of Legislative Assembly (MLAs) in state assemblies. They depend on their party’s ticket to fight the next election, and the anti-defection law chains them to their political parties. Popularly elected MPs are now hesitant to take a stand even on technical issues to avoid inviting the ire of their party leadership. And since MPs are not free to vote, political parties do not need to build consensus on issues.
The anti-defection law has had a similar adverse impact on state legislatures. These institutions have become less deliberative and simply a rubber stamp for the state government’s ideas, passing most laws without any deliberation or discussion.
In the ongoing crisis engulfing the government in Maharashtra – and similar turmoil previously in Karnataka, Madhya Pradesh, Uttarakhand, and other states – the anti-defection law has been in the spotlight, not only for its importance in deciding whether the government falls, but also for the ways in which political parties have found ways around the law. Visuals of lawmakers being herded from state to state have underlined their lack of independence and the fraying relationship between a party and a lawmaker. Last year, state legislative assemblies only met for an average of 21 days. And in 2020, nearly half the bills passed in state legislatures were cleared on the same day that they were introduced.
But the effect on the Rajya Sabha has been the most dramatic. The Constitution framers visualised two broad roles for the second chamber. First, as a revising chamber, it checks hasty legislation passed by the popularly elected Lok Sabha. And second, it was supposed to be a forum where MPs could voice the concerns of the states they represented at the national level.
Shortly after the passage of the antidefection law, a vote came up in Rajya Sabha concerning Article 249 of the Constitution. This provision empowers the Upper House to pass a resolution, allowing Parliament to make a law on a state subject. The Justice Sarkaria Commission on Centre-state relations analysed the voting pattern on this particular vote and found that voting along party lines and one party dominating the process in Rajya Sabha weakened its ability to represent the states. The Rajya Sabha’s functioning as a Council of States has been a mixed bag. In a few cases, it has been able to check hasty legislation. For example, in the last 70 years, it has rejected five bills passed by the Lok Sabha. On three occasions, the Upper House’s disagreement has resulted in a joint sitting. But in many cases, the Upper House has passed laws without adequate scrutiny and deliberation.
For decades, political parties wanted to have a greater say in who got elected to the Upper House. A 2003 law piloted by Atal Bihari Vajpayee’s government achieved this. It first required MLAs to show their votes to their political parties before casting them. And it allowed political parties to field outsider candidates to represent a state in Rajya Sabha. Both these steps contributed to fundamentally changing the nature of the Rajya Sabha.
Rajya Sabha MPs are now more aligned with their political parties than with the state they represent. Consequently, House proceedings have become more political, and witness more disturbances. As articulated by sitting Rajya Sabha chairman Venkaiah Naidu, productivity of the Upper House (the amount of time it functioned compared to the total time available) fell over the years – 87% during 1998-2004, 76% during 2005-14 and 61% during 2015-19.
These legislative measures have strengthened political parties at the cost of legislatures. It has left many assemblies with eroded powers of deliberative lawmaking. At a time when the nation’s attention is stuck on a political crisis in Maharashtra and in a year we mark 75 years of Independence, the country should seriously think about securing the freedom of our legislatures and legislators.