The scandalous collapse of the Karnataka government has reinforced an old demand for tightening of the anti-defection law. Sadly, the cure is worse than the disease.
On the face of it, the demand is understandable. The manner in which the government led by H.D. Kumaraswamy was brought down is a national shame. Not because this government was anything to be proud of. Conceived in bad faith and lived through mutual suspicion and everyday drama, the Congress-Janata Dal (Secular) coalition government was a farce. But the way it has been toppled is worse. It confirmed the belief that money, backed by powers-that-be in Delhi, can buy anything, reducing the citizens into helpless or gleeful spectators. Hence, the moral outrage. There is no doubt that this was a mockery of the anti-defection provisions inserted into the Constitution.
The first reflex, therefore, is to demand more stringent provisions to prevent defection. The trouble is that the existing provisions are already quite stringent, if not draconian. The current law allows a political party to order its representatives to vote in a specified way on any kind of motion. This includes not just the trust vote, but any vote that the party leadership chooses to issue a ‘whip’ on. Non-compliance invites disqualification from the membership of the concerned legislature. The only exception is to allow for a genuine split in the party. Earlier, the threshold of recognising a split was set at one-half of the strength of a party. It was made tougher and the bar was raised to two-thirds in 2003. This is as stringent as it gets, or should get.
Also read: What an Indian law can do to MLAs defecting in Karnataka & Goa – nothing
Loopholes in existing law
Any rule has loopholes. The current anti-defection rules allow two-thirds members of a legislative party to officially break from the parent party. Congress MLAs in Goa used this provision to join the Bharatiya Janata Party (BJP), and their counterparts in Telangana used it to join the ruling Telangana Rashtra Samithi (TRS). Now, the only way to tighten the provisions further would be to raise the bar to 100 per cent, in other words, make it illegal for any elected MLA or MP to leave their party under any condition.
The other loophole was invented by the BJP in Karnataka during the first Operation Kamal after the 2008 assembly election. The MLAs could resign from the legislature, switch sides, re-contest under a new symbol and come back to the assembly from a different party. This time too, the BJP has used this route. There is no pretension of an ideological or political split. It is defection, plain and simple, engineered through the resignation route. There is no doubt that big money has changed hands. There is no doubt that the by-elections that follow will be anything but fair. The only way to legally prevent this would be by making it illegal to resign. Those who resign could be disqualified from contesting elections for a certain period. This is what reformers want now.
This reformist temptation must be resisted. We should perhaps tweak the existing law a bit to put some restrictions. For example, a legislator who resigns and is re-elected can be prevented from holding any ministerial berth or any public office for one year since re-election. But any other ‘strengthening’ of the anti-defection provisions won’t achieve the purpose. It could lead to worse problems and complications.
Also read: Time to review anti-defection law, powers & functions of governors and speakers
Can’t prevent defection
There are no fool-proof remedies against defection. No degree of tightening of the loopholes can prevent a willing legislator from switching sides. A more stringent law can only increase the cost of defection. That leads to a corresponding increase in the price expected and demanded to switch sides. If the law were to be amended to disallow any split in the party under any condition, it would mean that every defector would take the resignation route. If every resignation is punished with disqualification, the defectors will start demanding higher price to compensate them for the loss. All this would no doubt discourage defection, but cannot prevent it altogether.
Even if we succeed, there is a heavy price that we would pay for this success. Late Madhu Limaye, a veteran socialist, was perhaps the lone voice to warn us against the dangers of anti-defection legislation. He had said the law would mean the end of intra-party democracy and a legislator’s independence. History has proved him right. Anti-defection law and its subsequent tightening have led to party leaderships tightening their stranglehold over elected representatives. Parliamentary proceedings are a single-command performance. The clique or the family that controls the party letterhead controls the lives of MLAs and MPs. If they fall out of favour of the party bosses, elected representatives count for nothing. Those who elected them also count for nothing.
Also read: What happens in Karnataka now? Speaker Ramesh Kumar’s actions, or inactions, will decide
Electors can show the way
Today, the dissenters within a party have two options: rebel or resign. If the law were to be amended to disallow even two-thirds of a party’s MLAs or MPs from parting ways, it would lead to a ridiculous situation where the entire legislature party could be made to do what no one wishes to. And if the law were to be amended to punish those who resign, the last option available to a dissenter would be closed. We would shut the doors for defection, but by shutting the doors on whatever remains of intra-party democracy, we would fight the evil by creating a bigger evil.
What, then, is the real solution? I am afraid the only solution to such problems in a democracy is to go back to the people. Naming and shaming is more powerful than any legal remedy. The only way to prevent defection altogether is to get the voters to punish the defector. No political leader wants an early termination of his or her career. So, if s/he knows that switching sides would make it impossible for him/her to go back to the electorate and get re-elected, s/he would not contemplate it. As long as the defectors of Karnataka can hope to get re-elected by the people, you cannot prevent defection. You cannot insulate a democracy from the people. In politics, search for fool-proof remedies is a fatal temptation.
The author is the national president of Swaraj India. Views are personal.