Why the anti-defection law has failed to deliver
Its inbuilt loopholes, the partisan role of institutions, and the influence of money in politics have weakened the law
The ongoing political crisis in Rajasthan is neither new nor uncommon. Turbulence in governments — involving the “switching of sides” by elected representatives — has been increasingly frequent in recent months. The past year has seen the toppling of two state governments in Karnataka and Madhya Pradesh amid allegations of political defections and horse-trading. There has also been turmoil in Goa and Manipur.
The phenomenon in question — i.e., bringing down an elected government by depriving it of its majority through the defection of Members of the Legislative Assembly (MLAS) — goes back a long way. To resolve this problem, in 1985, the Constitution was amended to include the Tenth Schedule (also known as the anti-defection law). The anti-defection law provides that members of political parties who disobey the whip or vote against the party in a confidence motion, will face disqualification. As recent events have made clear, however, the Tenth Schedule is no longer an effective check on the phenomenon of defection, and an urgent reconsideration is required.
There are a few reasons why this is so. The first is that the defecting MLAS have found a way around the restrictions in the Tenth Schedule. Instead of formally “crossing the floor” or voting against their party in a confidence motion, they resign from the party. This brings down the party’s strength in the House, and the government is toppled. A few months later, when by-elections are held, the same MLAS then stand for election on the ticket of the opposition party, and are returned to the assembly. This, it should be clear, is defection in all, but the most formal sense. Unfortunately, in their recent judgments, the courts have failed to stop this practice (although, arguably, the language of the Tenth Schedule does not leave much room to the judiciary).
The second reason is that no matter how well-drafted a constitutional provision is, ultimately, its implementation depends upon constitutional functionaries acting in good faith. As BR Ambedkar pointed out soon after the framing of the Constitution, every constitutional text can be subverted if those charged with running the affairs of government are inclined to do so.
In recent times, it has become clear that the major constitutional actors involved in times of constitutional instability — i.e., the governors and the speakers — do not act in good faith. In every constitutional crisis over the last few years, governors have acted like partisan representatives of the political party that appointed them, and have flouted constitutional conventions with impunity (from deciding which party to call first to form the government in a hung house, to ordering — or refusing to order — floor tests to prove majorities). Thus, despite the fact that the governor — as an unelected functionary — is supposed to play a minimal role in the affairs of the state, the individuals in that position have interfered on behalf of their erstwhile political parties. Speakers have done little better.
Third, the judiciary itself has not proved up to the mark. For example, during the Karnataka crisis last year, the Supreme Court (SC) — while ostensibly passing a “balanced order” — effectively overrode the provisions of the Tenth Schedule. It said that rebel MLAS, whose disqualification petitions were being considered by the Speaker, could not be compelled to participate in the proceedings of the House. The rebels were happy for they did not have to obey the party whip. This reduced the effective majority of the government.
More recently, the Rajasthan High Court effectively injuncted the Speaker of the Rajasthan Assembly from acting upon disqualification notices, despite clear SC precedent to the contrary. As observers have pointed out, if it is the case that horse-trading is in progress, then an indefinite injunction on the Speaker’s ability to act under the Tenth Schedule will only provide further fillip to such actions.
The last — and most under-discussed — aspect is the presence of money in politics. It has been widely reported that huge sums of money are offered to MLAS to desert their parties and bring down the government. This is enabled by the existence of electoral bonds, which allow for unlimited and anonymous funding to political parties. Under the electoral bond scheme, phenomenal sums of money have been donated to political parties over the last two years. Unfortunately, a petition challenging the constitutionality of the electoral bond scheme has been pending in SC for the last two years. Despite multiple election cycles, the apex court has taken no action upon it.
In sum, therefore, the anti-defection law needs to be improved (there have been suggestions, for example, that disqualification or resignation should be accompanied by a fiveyear-long bar from standing for elections again). More crucially, however, the legallysanctioned influence of big money in politics must be curtailed. If these steps are not taken, Indian democracy risks dissolving into a sham quickly.
Weak minds discuss people; average minds discuss events; strong minds discuss ideas,” said Greek philosopher Socrates. People and events dominate public discourse because they matter to the bread and butter issues of the people. But then, as Jesus Christ said, man does not live by bread alone. He needs ideas — “God’s word,” according to Jesus. We need strong minds to germinate transformative ideas.
There will be times when humanity yearns for such ideas. The coronavirus pandemic is one such occasion when the world is desperately looking for fresh ideas to shape its future.
Historically, Europe has been the intellectual kernel of mankind. Several avantgarde ideas originated in the minds of European philosophers and thinkers. In the last few centuries, all the important political ideas that impacted the world extensively came from Europe. From John Locke’s Enlightenment thinking to Karl Marx’s Marxism, from the Utilitarianism of Jeremy Bentham and John Stuart Mill to the Social Contract tradition of Thomas Hobbs, from Edmund Burke’s Conservatism to Frederick Nietzsche’s Nihilism — Europe produced many grand political ideas in the last two centuries. The democratic institutions that evolved during the same period are also the product of the continuous churning in Europe’s intellectual milieu.
One grand idea that India contributed to world political thought in the last century was Mahatma Gandhi’s non-violence. From Martin Luther King Jr to Nelson Mandela to Barack Obama — the list of leaders who admired and adopted non-violence as a political ideology is long. Interestingly, after India’s successful experimentation with non-violence in 1947, dozens of countries adopted it and subsequently secured independence. Most of those countries became democracies and the world witnessed a “democracy boom” by the end of the last century. The collapse of the erstwhile Soviet Union and the end of the Cold War also helped further democratisation.
But the dawn of the 21st century saw matters drifting fast. Democratic deficit and fatigue are setting in with alarming speed. Authoritarian regimes have bounced back with a vengeance. Terrorism, that acquired new dimensions and legitimacy towards the end of the last century, has led to the resurgence of the politics of violence. The first quarter of the 21st century witnessed the rise of “wolf warriors” and “lone wolfs”.
It is in this political climate that the Covid-19 has struck the world. It has affected all existing political systems, authoritarians and democrats alike, diminishing the credibility of each one. A leaderless and rudderless world is emerging out of these two-decades of churning culminating in the pandemic. What the post-pandemic world needs is not just a new leadership, but also ideas for a new world order.
Regarded for long as the crown jewel of democratic liberalism, the United States (US) is yielding ground quickly and significantly, signalling the decisive decline of those values in the world. In the last three decades, at least two dozen countries have turned authoritarian.
Authoritarian regimes such as China have emerged powerful during the same period. Authoritarianism does not affect the people of the respective countries alone. It puts a lot of pressure on others too. Democracies, by very nature, become vulnerable to the onslaught of authoritarianism. In the process, they too gradually turn to authoritarian measures to ward off the challenge of authoritarian regimes. The net result will be a world less liberal and less democratic.
There is a silver lining in the cloud though. Authoritarian regimes, although seemingly dominant at the moment, cannot sustain themselves for long. China is ageing fast. The one-child norm of the 1980s and 90s has skewed its demography. In a decade’s time, it will turn into an evening economy. So will other authoritarian regimes in West Asia for a variety of reasons. With their financial fortunes plummeting due to falling oil revenues, these authoritarian sponsors of terrorism are wilting precariously.
The next 10 years will be crucial for the world. It has to not only build new leadership, but also come up with new ideas and agendas.
It is here that India has a golden opportunity. India’s handling of the Covid-19 crisis has revealed the brighter side of its leadership and society. The combined efforts of the government led by Prime Minister Narendra Modi, extensive efforts by its ubiquitous bureaucracy, and the exemplary discipline and commitment of its 1.3 billion people have helped India manage the pandemic in a manner that has set an example to others.
India’s Covid-19 experience has highlighted its inclusive nationalism and humanist development vision. These can serve as the ideas for building a new agenda in a post-covid-19 world. The pandemic has made many countries insular. That has led to the rise of more authoritarianism in the world. India stood out with its inclusivist democratic policies that have seen the government’s popularity going through the roof. This, together with humanist globalism as against materialist and militarist authoritarianism, can set a new agenda for the emerging global order.
India has a decade to prepare itself to play a leading role in building such a world order. That is what the Prime Minister Modi calls Aatmanirbhar Bharat (self-reliant India) and Agenda 2030.