(In this Guest Post, Udit Bhatia, a doctoral candidate at the University of Oxford, examines the question of anti-defection laws, in light of the recent political and legal tussle in Uttarakhand)

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The anti-defection law, introduced by the 52nd amendment to the Indian Constitution, prohibits legislators from voting against their party’s whip on any legislation, or voluntarily giving up membership of their party. Legislators who act otherwise are expelled from the legislative body. This rule was formulated in response to what was perceived as large-scale dubious floor-crossing by legislators in response to monetary incentives to bring down governments. What the amendment forbade, however, was not just the practice of legislators voting against their party in a trust motion, or vote of no-confidence, but from voting against it on any legislative matter where the party chooses to issue a whip. The anti-defection law was at the forefront of a recent Supreme Court ruling over President’s Rule in the state of Uttarakhand. While much of that debate focused on the centre’s seemingly unjustified intervention in the state’s legislative affairs and its trust vote, it seems to have been yet another missed opportunity to deliberate upon the justifiability of an anti-defection law in the first place.

Before I examine that debate further, I wish to emphasize that such strict policing of party boundaries might be somewhat less problematic if parties themselves were internally democratic units. As with legislation, then, the coercive nature of party positions on those legislations could derive legitimacy through their being voted upon after a discursive process open to all members. Political parties in India, however, remain far from this model of intra-party democracy. The selection of candidates for elections remains a highly centralised process for a large majority of the national parties. Additionally, the executive committees themselves are products of insufficient, if not non-existent, procedures in most cases. Although there exists little research on this, the opaqueness with which parties respond—when they do finally respond—to the Election Commission’s requests for information about internal elections is telling. Their reports say little about the method through which the executive committees were chosen. It remains unknown whether such selection takes place through unanimous nomination, or election; and if the latter, how many votes were polled in favour of those selected.

The debate over defection can be located in the wider one over the relationship between elected representatives and their constituents. Political theorists have long debated whether representatives are best understood as trustees or delegates. The trusteeship model sees representatives as free to engage in political actions with adequate leeway on behalf of their constituents provided that they shall be held accountable ex post through elections. On the delegate model, representatives are elected to try and execute a mandate given to them by their constituents. They are not free to engage in whatever political actions they see fit, but must advocate and attempt to secure their constituents’ wishes. There might of course, be a clash with other constituents’ wishes, or turn out to be contextual limitations to how far representatives can do this. However, they are required to adhere as closely as possible to what their constituents elected them to do.

One might defend the anti-defection law as a component of the delegate model. On this explanation, representatives are elected by constituents to demonstrate adherence to political parties through which they have been chosen. The mandate of the representative lies in ensuring that the party’s platform, as determined by the organisation’s leadership is fulfilled as far as possible. On the other hand, we may even defend the anti-defection law as a component of the trusteeship model. On this reading, the agent to which leeway extends in fulfilling constituents’ wishes is the party and not the representative herself. Thus, we ought to give adequate room to parties to operate in whichever way they see fit in order to execute their platform insofar as they are accountable later through elections. The party’s control over the representative is a part of the leeway afforded to it.

I suggest that such defences of the anti-defection law would be misguided for at least two reasons. Firstly, any appeal to either a pure trusteeship or delegate model appears misguided. As constituents, we often work with both models in choosing our representatives. Thus, I might choose the Aam Aadmi Party, viewing my vote as having delegated it to enact a Jan Lokpal law. On the other hand, I may remain indifferent or unsure of my stand on its policies with respect to monitoring of public schools. I find it sufficient that I have a vote that I can exercise later to reward or punish what it decides to do, but do not hold a fixed view on the matter for myself. Further, it might also be that I amend my delegate-view as a result of the Aam Aadmi’s political actions. The party may decide to not execute the Jan Lokpal law, and explain that there are good reasons for not doing this. I may change my mind as a result of their explanation even though I originally viewed my vote as having delegated the party to enact that law. Therefore, the appeal to pure delegate or trustee models to defend the anti-defection law are mistaken because (a) it is unclear that constituents subscribe exclusively to one view (b) whatever stance constituents take on their vote is itself subject to change as a result of the political process.

Secondly, the emphasis on the party’s wishes to the complete exclusion of the choices of individual legislators does not square with elements of the democratic process. We do, after all, elect individual legislators belonging to certain parties, rather than voting for a party and allowing it to choose parliamentarians in its own wisdom depending on its vote-share. We also care about whom we vote for, as is evident in processes requiring scrutiny of individual candidates, their antecedents, and their wealth. It seems strange that we would invest as much in the individual characteristics of representatives when, at the end of the day, they are bound by the wishes of their party’s leadership.

One might now suggest that my argument does not provide compelling evidence for favouring complete autonomy for legislators. It might be true that we do not adopt pure trustee or delegate models in electing representatives. But it might be that on this particular choice—adherence to the party’s platform—we did, indeed, view our vote as an act of delegation. It might be that we do care about individual features of representatives, but we also elect them qua members of a party. My argument so far only seems to have led to further doubt in relation to the relationship between parties, representatives and their constituents. I will now argue that there is one way of resolving the debate: through a democratic process rather than a philosophical one.

It seems that the reason why debates over trustee versus delegate models are inconclusive is because the matter is not one that should be entrusted to a purely philosophical debate. Rather, it is precisely the kind of matter that democratic processes are intended to resolve. Whether legislators should lose their seat for voting against party lines or not seems precisely the kind of matter that voters ought to be entitled to determine since their can be reasonable disagreement on this issue. So far, it seems that my argument leads to the conclusion implied by the anti-defection law: if legislators defect from their party, they ought to face re-election. However, this does not follow from the principle sketched above. Contrary to the the Supreme Court’s assertion in Kihoto Hollohan, that “What might justify a provision for recall would justify a provision for disqualification for defection”, there is a distinction between the two.

Giving persons the ability to determine whether or not I have acted in accordance with their wishes does not require asking them this on every occasion. After all, it might be that my wish is precisely that I do not have to offer my judgment on each particular occasion. Rather, one need only provide persons the choice of offering their judgment. Thus, there is a difference between constituents having to give their judgment on whether their defected MP still represents them, and between constituents having the choice to give their judgment. The former results in an election being triggered as soon as the MP defects from the party. The latter allows constituents to trigger an election if they believe they are no longer represented as a result of the MP’s defection. The former is more consistent with democratic principles since it does not take a stand on the delegate or trustee model, instead leaving matters to the electorate. Unlike the pure trustee model, it does not leave constituents merely with the option of offering their judgment at the next electoral cycle. Rather, it affirms that a defection might be a worthy ground for loss of the MP’s ability to represent constituents at a particular moment. On the other hand, unlike the delegate model, it does not suggest that defection necessarily disqualifies MPs from being seen as representative of their constituents’ wishes. Instead, it affords them leeway to claim that their defection was an extension of their role as their constituents’ representatives—as long as their constituents do not repudiate this claim and ask to hold them to account.

As a result, one way out of the debate on defections seems to be awarding citizens a right to recall representatives where defection counts as one of the grounds for triggering recall. Does this move not threaten the political stability and social utility of political parties as the Court argued in Kihoto Hollohan? Firstly, such fears seem unfounded once one surveys the several democratic systems where parties continue to thrive in spite of defections. Secondly, such an argument ignores the considerable power parties anyway enjoy over their legislators, for instance, through the possibility of denying ministerial berths of future tickets for elections. Finally, my proposal sketched here also ensures that defection comes with an additional cost: the fear of facing a recall election. This makes it likelier that legislators would expose themselves to such risk only when such defection is perceived as consistent with their constituents’ demands rather than on extraneous grounds.

Specifying the proportion of constituents needed for triggering recall elections, and other legitimate grounds for  doing so is beyond the scope of this piece. Further, I will also refrain from assessing whether or not defection in a trust vote ought to be subject to a possible recall or the more drastic measure of by-election. This is because one might suggest that there are good practical reasons for disqualifying defectors in trust votes since these have more severe consequences for the stability of government, and it isn’t possible to curb corrupt practices. One might also argue that even though legislators can reasonably claim disagreement upon particular moves of the party, wholesale rejection of party membership ought to be subject to a greater threshold of scrutiny. However, even in this more limited form, the option of recall elections on grounds of defection would be more consistent with democratic principles than automatic disqualification for such a move.