The complexities of the anti-defection law have surfaced again in the recent developments in Maharashtra. There are several questions that need to be decided. Can the Speaker (or in his absence, the deputy Speaker) decide on a disqualification petition while a no-confidence motion is pending against him? Can the Supreme Court review the decision ahead of the disqualification decision being made? How does the leeway given for merger of a party operate — if two-thirds of MLAs of the party vote to separate from the party leadership, would they have to merge with another party to avoid disqualification? The solution to these issues is to address the root cause, and repeal the anti-defection law.

In brief, the Tenth Schedule to the Constitution (popularly called the anti-defection law) provides for disqualification of an MP or MLA if they vote against the party whip on any issue. This rule is not applicable if two-thirds of the party MPs/MLAs decide to merge with another party. The decision on disqualification is to be taken by the Speaker.

At first glance, this looks like a reasonable proposition. A legislator who is elected on a party ticket is expected to stick to the party’s ideological positions. Also, instances of monetary rewards for defections can lead to political instability. They also go against the mandate given by the electorate. However, this position misrepresents the basic design of parliamentary democracy. As Ambedkar explained while introducing the draft Constitution, the core of the parliamentary system (versus a presidential one) is that the government is responsible, on a daily basis, to Parliament. This is a trade-off for higher accountability at the cost of stability. The anti-defection law is antithetical to this principle.

We need to understand the role of an MP. There are two broad schools of thought. The trustee model contends that people expect their representative to exercise judgement on what is the best course of action. That is, the MP has to evaluate the different policy options, and then take a decision. On the other hand, the delegate model suggests that the representative is essentially the mouthpiece for the constituency and should reflect their views in Parliament. The anti-defection law subverts both these notions, and converts the MP to be a delegate of the party. Say, there is a Bill that an MP feels is not appropriate, and hurts the interests of a large proportion of her constituents. Also assume the MP’s party supports the Bill. The MP can neither exercise independent judgement nor go according to the wishes of her electorate. The wishes of the party will trump all other considerations.

Thus, this law strikes at the core of Indian democracy. The government has legitimacy because it is accountable to MPs. In turn, MPs are accountable to the people who elected them. However, due to this law, MPs (especially of the party in government) can no longer question its actions. As the government, by definition, has a majority in the lower House, it controls all decisions without any checks. Parliament, thus, has become a rubber-stamp for the government, rather than an institution of accountability. The accountability of representatives to their constituents is also weakened. In an electoral democracy, this accountability is maintained through periodic elections, as MPs have to explain their legislative behaviour to the electorate. (Witness the grilling that American candidates face for their voting records.) Indian legislators have an easy excuse — they had no choice but to vote according to the party’s diktat. This also weakens the incentive to examine policy issues and legislative proposals. After all, if the vote is pre-decided, what is the point of doing the hard work of understanding complex matters.

The law also centralises power within political parties. The top leadership can dictate terms to all the party legislators. The lack of inner-party democracy in most Indian parties exacerbates the problem. One could argue that this law is a factor towards splintering of political parties as ambitious leaders foiled by a glass ceiling form their own parties.

And interestingly, as the Maharashtra experience (and earlier ones in several states such as Madhya Pradesh, Karnataka, Manipur, Arunachal) show, the law does not work at crunch time. Legislators find loopholes if they are rewarded sufficiently.

The way to address defections has to be a political one, and not a legal one. Political parties are broad coalitions of people with similar ideologies. They need to attract and retain members through their ideological positions. They also need to build internal processes for members to rise to the top positions — as long as a party is dominated by a family, an ambitious non-family person has no choice but to exit the party. The solution for defections is not to strengthen the anti-defection law but to scrap it.