The ghost of ‘Aaya Ram Gaya Ram’ continues to haunt political parties. In recent times, five Congress MLAs in West Bengal, 10 Telugu Desam Party (TDP) legislators in Telangana and 20 YSR Congress MLAs in Andhra Pradesh have switched to their respective ruling parties, and sought to retain their membership of the Legislative Assembly. These and other instances of defections, such as in Uttarakhand and Arunachal Pradesh, where many or almost all members have switched to other parties seem to suggest that there is no constraint on Members of Legislative Assemblies to switch from parties which had nominated them as candidates in the last election. This makes us wonder whether the current anti-defection law is too weak — or whether the anti-defection law should be abandoned as it has not been effective, so that one can think afresh about how to control defections.
Before attempting to answer this question, we think that it would be erroneous to judge these various kinds of defections under one category, each guided by their own motivation and circumstances. Thus, one needs to make a distinction between different types of defections with respect to the provisions of the anti-defection law.
Three categories
The most important provision of the 1985 law, which was amended in 2003, states that those legislators who voluntarily give up the membership of a political party or defy the party whip in case of a trust vote are bound to be disqualified. In light of this provision, defections can be classified into three types or categories.
One, in certain cases, legislators as a ‘faction’ quit membership of a political party or defy the party whip and join another political party. But as per the law there is a numerical criterion for such ‘rebel MLAs’ to legitimately join another political party and avoid disqualification; two-third of the members of the legislature party must support the decision. For example, the events which unfolded in Arunachal Pradesh facilitated the merger of 43 ‘rebel’ Congress MLAs with the People’s Party of Arunachal.
Two, MLAs often defect to other parties in pre-election season , as we are seeing in Uttar Pradesh and Punjab. By political wisdom, such defections are usually indicative of the direction of the electoral wind. The law in these cases becomes redundant as even if MLAs are disqualified, the date for seeking a fresh mandate is often merged with the upcoming Assembly election.
Our primary concern is with the third type of defections: MLAs defecting toward the ruling party after a new electoral mandate has been delivered. The three States of West Bengal, Telangana and Andhra Pradesh have seen legislators joining the ruling party after a new round of elections held in 2016 and 2014, respectively. Legislators often argue that defection is a matter of choice and as individuals they have a right to decide who to support. This bring us to the fundamental dilemma of political representation faced by all electoral democracies — how should the political representative function in the public policy process? Does the representative have an individual choice which he/she can exercise or is he/she always bound to the preferences of his/her constituents?
Political theory has reflected on this dilemma as a conflict between a ‘delegate’ and a ‘trustee’. The trustee notion of political representation was advocated by James Madison and it underlines the function of the legislator to represent the views of his constituency in the public policy process. On the other hand, the delegate notion advocated by Edmund Burke argues that that a political representative should follow his or her own judgment as to what should be the best course of action. Thus, adhering to the delegate notion, several democracies have not adopted an anti-defection law, even though legislators often become turncoats and switch to the other side. In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view, yet continue within the same party. The rationale behind this draws from the delegate argument that legislators should be allowed to express their own views and a defection law amounts to curtailment of the delegate’s freedom of choice.
The difference in India
Even in India, several commentators have highlighted the irrelevance of the anti-defection law and called for reconsideration of such a legal provision. This brings us to the aforementioned dilemma and the relationship between representatives and their constituents. However, India is an exception to this relationship prevalent in Western democracies as political representatives represent their respective political parties rather than electoral constituents. This can be explained by the fact that voters tend to vote for political parties rather than candidates. Evidence from surveys conducted at CSDS show that for Indian voters, the political party is the most important consideration vis-à-vis candidates while casting their ballot.
Thus, unlike Western democracies, India enacted the anti-defection law to tackle political turncoats; otherwise it would lead to a violation of the people’s mandate. But there seem to be variations in the effective implementation of this law as the decision to disqualify a legislator is contingent on the institution of the Speaker. The partisan role of the Speaker in many States has ensured the continuation of turncoat legislators as legitimate members of the House. This is a good time to heed the advice of eminent constitutional experts and scholars to amend the anti-defection law and rest the authority to disqualify turncoats in the hands of an autonomous body.
Souradeep Banerjee is a Researcher with Lokniti, a research programme of the Centre for the Study of Developing Societies (CSDS). Sanjay Kumar is Professor at and currently the Director of CSDS. Views are personal.
