The anti-defection law and its effect on politics

In their final statement before the Constituent Assembly on November 25, 1949, B.R. Ambedkar said, “The Constitution provides for organs of the State such as the Legislature, the Executive and the Judiciary. The factors that depend on the functioning of those organs of the state are the people and political parties that establish their wills and their means to manage their politics.

The legislative history of the republic can be roughly divided, with legislatures on one side and 1985 on the other. Before 1985 our legislators had the constitutional protection to say their opinion. They had no choice but to vote for their conscience in parliament and state assemblies, regardless of their political parties. That year, Prime Minister Rajiv Gandhi’s government passed an anti-defection law, muting the voices of lawmakers across the country. Its aim is to prevent lawmakers from defeating and destabilizing governments. But the text of the legislation suggests that its purpose is to allow political parties full control over legislatures.

First, the law prevented lawmakers from voting against a party line on any issue in the Legislature. If its aim is to curb defeats and ensure stable governments, then limited political parties may be required to force lawmakers to vote only when the future of the government is at stake. Second, the law did not limit itself to voting. It had wide scope and restricted lawmakers from speaking on issues that were contrary to their political party stance. And finally, the same applies to members of the upper house, even if they have no say in determining the continuation of government. This law has fundamentally changed the nature of parliament and state legislatures. This has a cool effect on the speech of Members of Parliament (MPs) and MLAs (MLAs) in state assemblies. They rely on their party’s ticket to fight the next election and the anti-defection law binds them to their political parties. Popularly elected MPs are now hesitant to take a stand on technical issues to avoid inviting the wrath of their party leadership. And since MPs are not free to vote, political parties do not need to build consensus on issues.

Anti-defection legislation has had a similar adverse effect on state legislatures. These institutions have become less rubbery and simply a rubber stamp for the ideas of the state government, which would accept more laws without any discussion or debate.

In the ongoing crisis that has engulfed the government in Maharashtra – and in the past, similar turmoil in Karnataka, Madhya Pradesh, Uttarakhand and other states – anti-secession law has been in focus, not only for its importance in determining whether the government will fall, but also for the ways in which political parties have found ways around the law. State-to-state legislators are squeezing their lack of independence and the worsening relationship between the party and the legislators. Last year, state legislatures met for an average of 21 days. And in 2020, nearly half of the bills passed in state legislatures were cleared the same day they were introduced.

But the impact on the Rajya Sabha is extremely dramatic. The constitution-makers visualized two broad roles for the second chamber. First, as a revision chamber, it examines the hasty legislation passed by the popularly elected Lok Sabha. And second, it was supposed to be a platform for MPs to express concerns of the nationally represented states.

The vote came in the Rajya Sabha in terms of Article 249 of the Constitution shortly after the anti-defection law was passed. This provision empowers the upper house to pass a resolution, enabling Parliament to make a law on the subject of the state. The Justice Sarkaria Commission on Center-State Relations analyzed the voting pattern on this particular vote and found that voting in a party line and a party dominating the process in the Rajya Sabha weakens its ability to represent states. Working as the Rajya Sabha Council of States is a mixed bag. In some cases, it has been able to review hurried legislation. For example, in the past 70 years, the Lok Sabha has rejected five bills passed. Three times, the dissent of the upper house resulted in a joint session. But in many cases, the Upper House has passed laws without adequate scrutiny and debate.

For decades, political parties have wanted to have a greater say in who is elected to the upper house. This was achieved by the 2003 law of Atal Bihari Vajpayee’s government. This is the first time lawmakers have had to show their votes before they vote for their political parties. And allowed political parties to field outside candidates to represent the state in the Rajya Sabha. Both these actions have contributed to fundamentally changing the nature of the Rajya Sabha.

Rajya Sabha MPs are now more aligned with their political parties than the state they represent. As a result, the proceedings of the House have become more political and have witnessed more confusion. As Holly Rajya Sabha Chairman Venkaiah Naidu explained, productivity of the upper house (the time it operated compared to the total available time) declined over the years – 87% in 1998-2004, 76% in 2005-14 and 61% in 2015-19.

These legislative measures have strengthened political parties at the expense of legislatures. It has lost many legislatures the power of debating law. At a time when the nation’s focus is on the political crisis of Maharashtra and we are celebrating the 75th year of independence, the country must seriously think about securing the independence of our legislators and legislators.

Chakshu Roy is Head of Legislative and Citizen Engagement, PRS Legislative Research

The opinions expressed are personal

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