The anti-defection law may be seen to violate the principle that the executive is subject to oversight by Parliament and a single party majority government increases the risk.
The composition of the new Lok Sabha is a reason to revisit the Anti-Defection Law. This is the first time since the Constitution was amended in 1985 that a single party has won a majority of seats in Lok Sabha. With that one of the checks on the government has greatly diminished.
Most democracies rely on a web of checks and balances to prevent any excesses by the administration of the day. The idea is that there could be situations when the government of the day may take steps that are not in public interest. In extreme cases, this may even result in curbing of civil liberties. Therefore, a system needs to be put on place that checks the powers of the government. The Constitutions of most liberal democracies are designed around this principle.
In some Presidential systems such as the United States, the President is directly elected and has the power to take executive decisions. He is also assured of a full term unless he is impeached on charges of high crimes or misdemeanours. However, he has no power to pass legislation which is the exclusive domain of the Congress. The legislature can also check executive action as it approves all spending plans and decides the tax structure. All treaties need to be ratified by the Senate. There are, of course other institutions, including the Supreme Court that provide further checks.
Arguably, the Parliamentary system bestows more power on the Prime Minister. As the person who enjoys the confidence of the majority of members of the lower house, it is easier for him to get Bills passed in that House. For money Bills, which include all spending plans and taxes, he needs only the consent of the lower house. In India, the government has the power to sign treaties and does not need ratification by Parliament.
However, Members of Parliament are expected to oversee the working of the government, regardless of their party affiliations. The government needs the support of the majority of MPs for any Bills to be passed or any other motion to be approved. Each MP is expected to critically evaluate the proposal and make up his mind. In principle, the MP acts in the national interest as perceived by him. If the government wants to get any proposal cleared, it must persuade MPs by force or argument and reason.
Of course, in practice, MPs tend to follow the party line on most issues. That said, there are occasions when they may choose to differ. For example, the British government lost the vote on going to war in Syria despite the ruling coalition having a comfortable majority in the House of Commons.
The Anti-Defection Law changes the game. MPs cannot oppose their party’s decision on any issue. The penalty for breaching this line is that they would lose their membership to Parliament. This implies that the party in power can issue a whip and get any law passed.
During the last 25 years, the composition of Parliament has provided some checks on this power. We have had coalition governments through this period. Therefore, the power to ensure compliance by all MPs belonging to the ruling coalition was distributed among the party leaders of all the constituent parties. The leader of the major party (or the Prime Minister) would have to convince the leaders of other coalition partners of the merits of the case before getting the whips issued. In sum, the anti-defection law had resulted in the decision making power moving from individual MPs to a few party bosses.
Even this marginal check is removed when a single party obtains majority in Parliament. Now this party can, without the necessity to convince its allies, issue directions to its MPs, which they are bound to follow. The newly elected Lok Sabha has this feature. The current composition of Rajya Sabha does provide a check as the BJP does not have a majority in that House.
This is a structural problem. One should not have the situation when a government can push through any of its policies without a broader political consensus. The cost of doing so could be greater instability as the next government may reverse the decisions. For example, many of the changes to the Constitution made in the 42nd Amendment were reversed by the 44th Amendment a couple of years later. And both these were carried out in the days before the Anti-Defection Law was passed.
Proponents of the Anti-Defection Law may argue that it is needed to ensure the stability of the government so that it can take some necessary measures that may not be popular. There is a basic flaw in this line of thinking. The parliamentary system does not guarantee a fixed term (unlike the American presidential system) for the administration. The government has to continuously convince Parliament that it deserves to stay in power. The process of a no-confidence motion provides the opportunity for a group of MPs to challenge its claim of majority support in Parliament. This framework collapses if one permits a system like the anti-defection law in which the Prime Minister (likely to be in control of issuing the party whip) can issue directions to all his MPs to support the government. In effect, in situations when a party has won a clear majority of seats in Parliament and elected its parliamentary leader, all MPs have ceded power to challenge any decision of this leader for the next five years.
Even if one accepts the ‘stability’ argument, it is difficult to see why the Anti-Defection Law should apply to issues that do not affect the stability of the government. This would include all cases other than a no-confidence motion or a money Bill, i.e., all ordinary Bills, constitution amendment Bills, other Motions etc. It is even more difficult to see how this logic can be extended to any proposal in the Rajya Sabha.
In sum, the anti-defection law may be seen to violate the principle that the executive is subject to oversight by Parliament. A single party majority government increases the risk. It is time to review this law.
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