It is time to remember Madhu Limaye. As we survey the debris of the anti-defection legislation, an outstanding parliamentarian of independent India had a prescient warning for us. A socialist, a freedom fighter jailed by the British and the Portuguese, bête noire of the RSS who singlehandedly brought the Morarji Desai government down on the issue of ‘dual membership’, a prolific writer in Marathi, Hindi and English and a four-time member of Lok Sabha from Bihar, Madhukar Ramachandra Limaye was a custodian of conscience for the republic of India. This year is his birth centenary.
He was the lone voice of principle dissent against the anti-defection law when it was first introduced in 1985. Beginning with the famous 1967 Aaya Ram Gaya Ram episode in Haryana, where an MLA’s ‘conscience’ made him switch political loyalties twice within the same day, India had seen a spate of defections. In 1980, Bhajan Lal had walked away with all the Janata Party MLAs in Haryana into the Congress. Defection was seen, rightly so, as a mockery of representative politics. That is when someone came up with a bright idea of a legal ban on political defections. It fitted well with our national obsession with bans as permanent solutions. So, an anti-defection legislation, actually a major constitutional amendment, was drafted and passed amid much fanfare and applause from all quarters.
Madhu Limaye, not in Parliament then, stood against the dominant public opinion and warned the country against going ahead with this cure worse than the disease. In a series of articles (Law against Defections in The Times of India 1985), he said that such an amendment struck at the core of parliamentary democracy. He had three objections. One, parliamentary debates would become meaningless because the elected representatives would not be free to follow their conscience. Two, the institution of ‘whip’ would encourage the dictatorship of party leaders. Three, while this law might curb ‘retail’ defection, it would keep the doors open for ‘wholesale’ defections.
Nearly four decades down the line, every one of Madhu Limaye’s apprehensions has come true. We have ended up with the worst of both worlds. We have successfully stymied the freedom of MPs and MLAs, but we have not managed to prevent defections of the most brazen variety.
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Pick your model – Karnataka, Goa or Manipur
The main objective of inserting the Tenth Schedule in the Indian Constitution—to prevent the high-jacking of people’s mandate through the sale and purchase of elected representatives—remains unrealised. The latest drama in Maharashtra serves as yet another reminder of how harmless this legislation is when faced with a determined and powerful bid to topple an elected government.
In the last few years, we have seen many such models successfully circumventing this law in full public glare and right under the nose of the judiciary. There is the Karnataka model of “Operation Kamal”: Get the requisite number of MLAs to defect from the ruling party, honourably quit their seats, win by-elections on another party’s symbol helped by generous bundles of cash that have emerged from nowhere, and form a new government. There is the good old Goa model: Wholesale trading where you can persuade an entire legislative party to change loyalties, bypassing its own leadership, as the Congress did with the BSP MLAs in Rajasthan. That has not prevented the Manipur model of retail trading when a few MLAs switch loyalties, in flagrant violation of the anti-defection law, and the speaker and courts keep their eyes shut for as long as necessary. Finally, we have “Operation Guwahati” that might inspire a Maharashtra model: Take a bunch of MLAs and wait for others to join to meet the legal requirement while the constitutional watchdogs feign sleep. Anti-defection law is a joke, a minor legal hassle that any power-broker can circumvent, as easy as selling or buying real estate with ‘power of attorney’.
Worse, we have instituted a discriminatory system with two classes of political actors – those who can and those who can’t get away with defection. If you are a lone MP or an MLA stuck with a conscience, or at odds with the principles or policies of your own party, you have nowhere to go. The party can ‘whip’ you into submission on any issue. The AAP once issued a whip requiring Pankaj Pushkar, then its dissenting MLA, to vote against himself, in favour of a resolution that indicted him!
The quality of legislative debates had already been declining, but the anti-defection provision has surely contributed to turning parliamentary or assembly proceedings into a farce. Those who control the party letterhead and who can direct its Chief Whip control the life of MLAs and MPs. Whatever remained of intra-party democracy has disappeared.
If you are the BJP, however, anti-defection is a paper formality, with a few calls from the top levels of government going to the right quarters. Far from being a neutral referee, the speaker is an active player in the defection game. The governor is over-jealous to solemnise the unholy union. And the courts simply acquiesce, discovering new principles and precedents every time, which happens to suit the ruling dispensation.
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Laws can’t reform politics
The anti-defection law has not just failed to cure the disease, it has actively contributed to the decline of other constitutional offices. We never had independent speakers (barring exceptions such as G.V. Mavalankar and Somnath Chatterjee), but anti-defection law has made it impossible for any political party to contemplate neutral speakers. The institution of the governor has been soiled too. And so has the reputation of the judiciary.
So, it may be a fitting tribute to Madhu Limaye, in his birth centenary year, to scrap the Tenth Schedule to the Indian Constitution and forget this farce of a legislation to prevent defection.
What about the problem of defection? It is of course a menace, an insult to the voters and the relationship between the representatives and the represented that democracy presumes. As I have argued earlier, the solution lies with the people, only they can punish the defectors when they come to them for votes next time. If the people don’t punish the defectors – Goa has acquired notoriety in this respect – there is very little that anyone can do about it from outside. You cannot inoculate democracy against the people. You can turn to politics to reform policies in any sector, but whom do you turn to for reforming politics? In a democracy, the only answer is the people.
Laws can occasionally help people make up their mind (as with disclosure requirements for candidates), or protect some minorities against excesses of majoritarianism, but in the last instance, laws cannot substitute the people in upholding democratic norms. No law can ensure honest candidates, or force a political party to implement its election promises or secure democratic functioning within political parties. Searching for foolproof legal remedies to reform politics is a fatal temptation.
Yogendra Yadav is among the founders of Jai Kisan Andolan and Swaraj India. He tweets @_YogendraYadav. Views are personal.