There are very few institutions in the modern world comparable to the British Parliament. Since 1649, when a civil war between royalists and parliamentarians led to the public beheading of the King of England, Charles I, Parliament has dominated politics in Britain and, eventually, through the British Empire, large swathes of the world. As one Victorian lawyer quipped, extolling the power of his country’s national assembly: “Parliament can do anything, but make a woman a man and a man a woman”.
On Wednesday, the institution reiterated its power again by voting to prevent the exit of the United Kingdom from the European Union without an agreement between the two entities – or a no-deal Brexit for short. “Boris Johnson defeated as MPs take control,” read one headline.
Embarrassingly for Johnson, the British prime minister, Parliament was able to flex its muscles only because as many as 21 MPs of his own Conservative party voted against him. One defecting MP, Phillip Lee, was emphatic. He was opposing his own party’s government in the national interest since Johnson’s highly contentious Brexit plan was “endangering the integrity of the United Kingdom” and “undermining our country’s economy, democracy and role in the world.”
The move was a remarkable assertion of the primary role of Parliament: keeping a check on the executive. In the Washington Post, American columnist Anne Applebaum was impressed enough to wish her own country’s legislators would take such a courageous stand in the national interest. “21 British Conservatives put country over party. Why can’t 21 Republicans do the same?” read the headline of her piece.
What about India? Ironically, although India models its democracy on Britain, not only would Applebaum’s plea that legislators put country ahead of party be unlikely – it would be illegal. India’s legislatures, both the Union parliament as well as the state assemblies, are regulated by the anti-defection law, which binds a legislator to her party. If a similar situation had happened in India, where MPs or MLAs voted against their government in the national interest, rather than be lauded, they would be booted out from the legislature.
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This unusual system came about in 1985 and was introduced by the Rajiv Gandhi-led Union government. The backdrop was that the Congress party’s domination was coming to an end and a new multi-party order was emerging. As a result, the Congress high command made the very act of a legislator defecting to another party illegal. The only exception: when a third of a party’s legislators broke away at once (the proportion was later amended to two-thirds).
The backers of the anti-defection law argued that by restricting defections, they were reducing the impact of corrupt money in politics as well as cancelling out the lure of a ministerial post.
It is, however, very difficult to argue with a straight face that the quantum of corrupt money in politics has come down since 1985. Estimates by the Centre for Media Studies have pegged the 2019 Lok Sabha election spend at a staggering Rs 600 lakh crores – a 100% increase since 2014.
Moreover, neither has the anti-defection law cured politicians of their desire for ministerial office. Political bargains over ministerial posts are an open part of Indian politics, whether in a one-party government or a coalition. It is unclear why the anti-defection law penalises the give-and-take over a ministerial post when an individual legislator does it, but sees it as above board when a party high command indulges in the same act as part of a coalition.
Ironically, rather than stop defections, the anti-defection law has ensured they take place wholesale. In Goa, 10 out of 15 Congress MLAs defected to the BJP in July. As it so happened, three of the defectors were also made ministers. In Sikkim, 10 out of the 13 MLAs with the Sikkim Democratic Front defected to the BJP in August and the saffron party became the main opposition party in the state without winning a single seat in the elections. And both cases were perfectly legal since it met the law’s two-thirds limit. How is one MLA defecting bad but 10 switching over fine?
Even as the anti-defection law has done little good, it has done plenty harm, taking away the main power of a legislature in a parliamentary system: to check the executive and make it accountable to the voters.
In a normal parliamentary system, the legislature can block laws or even, in extreme cases, vote out a government using the instrument of a no-confidence motion. This is an important check since in a Parliamentary system, the legislature is the only body that is directly elected, the executive is not. It is for this reason that in the United Kingdom, Parliament is held to be sovereign or supreme.
However, the anti-defection law creates an unusual conflict of interest. The same party high command that controls the executive also, by law, controls the legislators now. In most cases, the members of government are the party high command. In such a situation, how can Parliament or a state assembly check an abuse of power by the government? And how can a body elected by the people of India be dictated to by an unelected party high command?
A uniquely Indian model
There are a number of models of democracy which try and make sense of how representatives function once they win an election. In the trustee model, a legislator should function not directly as per the diktats of his voters but in the larger interests of the country. Another model, the delegate model, proposes that the only job of a legislator is to faithfully carry out the mandate of his voters. A third model, the politico model, merges the two and proposes that legislators switch between being trustees and delegates. It maybe best describes the real-world functioning of most developed democracies, where legislators have to balance the interests of the nation and their own constituency (who the legislator will have to go back to in case she wants to be re-elected).
The anti-defection law, however, throws these models out the window and invents a uniquely Indian way. Rather than act in the interests of her country or her voters, an elected politician should only act in the interests of her party.
Not only is this undemocratic – in a democracy, the highest duty of a politician should be to his voters and his country – it is made worse by the fact that India’s parties themselves have no internal democracy, being controlled either by a strongman or a small (and often familial) cabal.
Thus not only has the problem of corruption not been solved, the anti-defection law has greatly weakened two fundamentals of democracy: the bond between a legislator and her electorate and the legislative check on the executive.
Unlike what happened in the UK on Wednesday, Indian MPs and MLAs will never be able to check a government even if it is doing something that is harmful. The anti-defection law leaves Indian democracy terribly hobbled.