A handful of party leaders cannot be allowed to trump the wishes of people and remove MPs, MLAs from the Houses

The recent political drama in Maharashtra brought the anti-defection law into focus. Some analysts want it to be made more effective or stronger. The truth, however, is that this is one of the most illiberal pieces of legislation ever enacted; and it has done immense harm to democracy.

The votaries of the anti-defection law say that there should be an end to what is derogatorily called Aaya Ram-Gaya Ram politics. How can a Member of Parliament (MP) or of legislative assembly (MLA) vote against the party on whose ticket he or she won the election? Isn’t it a betrayal of the party that had reposed its trust in him or her?

Yes, it is, and the party has all the rights to deal with the disobedient lawmaker; it can expel them. But it has no right to expel them from the Lok Sabha or the Vidhan Sabha, for it was the people who sent them there, not the party. The mandate of the people cannot be nullified by the whims and fancies of party bosses, however high and mighty they might be. The legislators enter the legislature because people, not the top party leaders, want them there. A handful of party leaders and managers cannot be allowed to ride roughshod over the wishes of people.

The supporters of the anti-defection law say that horse-trading is an abomination, and it should be stopped. The much bigger and far uglier abomination, however, is stable trading. This is what we have seen after the enactment of the law.

To put it in other words, horse-trading is far less bad than stable trading. If your MP or MLA doesn’t represent you properly in the legislature, you can question them, but if they have to follow the party whip on important issues, you can’t blame them because blame presupposes free will, which they are deprived of by top party leaders.

The anti-defection law is evil because, by disempowering MPs and MLAs, it has killed the very idea of representation in a parliamentary democracy. An illustration will make it evident: A major issue, say, extreme water pollution plagues your area. People in your locality campaign for a corrective measure; they tell the MLA about the problem; and they promise to help you. In the legislative assembly, the issue is brought up, but the MLA is forced—‘whipped’—to vote against the corrective measure.

When you confront the MLA, they tell you that they were bound to obey the whip; they couldn’t vote for you because that would have breached party discipline. What kind of representativeness is this in which your elected representative can’t take your problems to the government which, by the way, exists because of the support of elected representatives like yours?

Technically, in the parliamentary form of democracy, the executive is responsible to the executive; in practice, though, it is the other way around. MPs and MLAs have to obey the dictates of their respective party leaderships. Democracy stands on its head: while lawmakers are directly elected by the people and thus should be answerable to them (the people), in practice they become answerable to, indeed servants of, party managers. And servants, like slaves and sheep, can be herded or shepherded around as per the convenience and requirements of apparatchiks.

This has been going on for decades; the English language continues to betray the fact that democracy is being degraded. Such expressions as ‘the chief minister is trying to keep his flock together so that the Opposition doesn’t poach on them’, ‘MLAs have been herded to a resort,’ and ‘the party has issued whip to the MLAs’ are regularly used in political parlance. By the way, in no other democracy in the world whips are so deadly as in India; nowhere else do the legislators lose membership of the house by defying whips.

Flock, herd, poaching, shepherding, poaching, whip—this is the lexicon of animal trainers, not of political commentators. Yet, top journalists and other opinion makers frequently use these terms, blissfully unaware of the subconscious acceptance of the degradation of elected representatives and democracy.

How did we reach here? The original sin was the 52nd amendment to the Constitution in 1985, the anti-defection law in common parlance; it made MPs and of MLAs the slaves of party bosses. The Statement of Objects and Reasons of the Fifty-second Constitution Amendment Bill, 1985 read: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.”

The new legislation, ostensibly enacted to end “legislative anarchism,” provided that a lawmaker would cease to be a member of the legislature: if he resigns from the party on whose ticket he was elected; if he votes, or abstains from voting, in the House “contrary to any direction” issued by the political party to which he belongs; or if he has been expelled from such political party “in accordance with the procedure established by the Constitution, rules or regulations” of such party.

The author of the law, the then law minister Asoke Sen, claimed that it would “cleanse the political life of this country of the dirt accumulated over the years.” Corruption in politics will end with this law.

One need not be a political analyst to know that venality and unscrupulousness have increased since the law was enacted. The remedy has proved to be infinitely worse than the malady. Indeed it engendered another malady: the enslavement of elected representatives.

It is interesting to notice that the Opposition at that time resisted the Bill. L.K. Advani of the Bharatiya Janata Party (BJP) was prophetic in his lamentation that this would “muffle dissent forever in a party like the Congress(I)…”

It is another matter that when his party was in office in 2003, and he was deputy prime minister, the BJP-led government decided to make the law even more stringent. The 1985 law recognized a “split” in a party if at least one-third of members of the legislature party decided to form or join another political party. The BJP-led government, however, introduced the 91st amendment to the Constitution in 2003, making the requirement for split or merger stiffer: since then, at least two-thirds of members of a legislature party need to leave the party. Evidently, Advani & Co forgot the ‘muffle dissent’ rhetoric.

Hypocrisy, however, is not the monopoly of the BJP. Speaking at the Kerala Literature Festival in Kozhikode, Kerala, on February 5, 2017, Congress MP and former Union minister Shashi Tharoor said the anti-defection law negatively impacted democracy as it diminished the voting power of people’s representatives. “The anti-defection law has a negative impact on democracy. A people’s representative does not have the right to vote according to his conscience. He has to vote on what his party says,” PTI quoted him in its report.

Kapil Sibal, a senior leader who recently quit Congress, also wants the anti-defection law to go. Alas, it didn’t occur to him when held the law portfolio.

The same old story: introduce illiberal laws when in power, and slam such legislation when in the Opposition. Meanwhile, liberty gasps for breath in politics—as elsewhere.

Tagore aspired that his country should awaken into the “heaven of freedom.” India, where even the legislators are enchained, is certainly not that country.

(The writer is a senior journalist associated with The Pioneer.)