Who wants to be on the losing team? The answer is nobody, and particularly not politicians, especially in the political situation that India is in today, where the opposition’s existence and influence is close to nil. Such legislators find a simple solution to this problem: defection. Defection, in layman language, is joining the winning team after the game is over and you’ve already played for the team that lost.

This may seem absurd in general terms, how would you be an asset to a team that has already won? However, in politics, numbers are everything. If you defect to the majority, they increase their percentage points and maintain their majority. Each defector is like an additional layer of bubble wrap to the fragile glass of governance.

From a realist perspective, defection makes sense. If politics is all about power, then why would a politician willingly remain without any? At the end of the day, what good is ideological and partisan loyalty if you cannot make a dent in the political arena.

India has a long (and borderline funny history) with defection. The phrase ‘Aaya Ram, Gaya Ram’ (‘God came, God left’) was coined after an MP from the northern state of Haryana, Gaya Lal changed parties thrice on the same day in 1967. The period of continuous defections in the 1980’s is what led to the institution of the Anti-Defection Law in 1985 during the tenure of Prime Minister Rajiv Gandhi’s government.

The Anti-defection Law in India disqualifies members of the legislature under any one of the two conditions. Firstly, if they voluntarily give up membership of the party. And secondly, if they go against the party whip. The party whip is a command that comes from the party organisation, usually regarding which bills to pass and which to vote against. Interestingly enough, the first condition subsumes things other than simple resignation from the party. According to court judgments, the giving up of membership can be inferred from conduct. So, if a legislator was to speak against his party or in favour of the opposition, a case could be made against him against this law.

Many arguments against this law have been formulated in the past years. A major concern is the curbing of the freedom of expression. The defence to this freedom of expression argument is that differing opinions within parties leads to instability in the body politik. Just as defection makes sense for individual interest, the law makes sense for structural interests. However, at the end of the day, it means that if the legislator’s constituency is negatively affected by a certain policy or decision that his party is promoting, he doesn’t have the right to express dissent. The politician stands separated from his conscience. The second condition goes further to impair the legislator from taking any action or even abstaining to act for his party. Consent is dubious in this situation.

This issue was raised in the Supreme Court in 1992, to which it said, “the anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct… above certain theoretical assumptions.” There is no right way of reacting when the apex court in your country calls the freedom of speech a “theoretical assumption”, but a bit of shock is valid. It is true that most cases of defection are about being on the winning team, about seeking out greener pastures. However, in situations such as post-poll alliances with an ideologically opposite party, the legislator must remain completely in favour of party decisions even at the cost of disappointing his constituency.

This stance of the court clearly states the assumption that the party is always right. While ideological compatibility is the basis for party formation, it is impossible for an entire party to have the same vision even under the same umbrella ideology. Many identities are embraced in a party and most of the times, these identities determine individual priorities. Denying a voice to any legislator goes directly against the spirit of democracy and multiculturalism.

On this note, we can look into some of the structural and implemental loopholes that allow defection to continue despite the 1985 law.

There is an exception that protects legislators from disqualification. If two-thirds of the legislators from a party agree to a “merger” with a different party, then this does not fall under the purview of the Anti-Defection Law. Using this loophole, 12 MLAs from the Congress party “merged” with the Telangana Rashtra Samithi, the ruling party in the southern state of Telangana, in June 2019. When read closely, the law provides this exception only when the original party merges with the party being defected to. Also, following certain court judgments, this decision of merger could only have been made by the All India Congress Committee and not the Telangana Pradesh Congress Committee.

Secondly, the Presiding officer of the presiding party decides the verdict on defection cases. This officer is almost always a part of the ruling party. This means that defections from the ruling party will be blocked but the ones to the ruling party never will. Since the latter is the wave that defectors tend to ride, this provision effectively reduces the chances of defectors being disqualified.

In the United Kingdom, defection causes expulsion from the party but the legislator retains her seat. They are also only a result of defying a three-line party whip (the most urgent type of whip issued) as a sign of voluntarily giving up membership of the party. In Australia, some minor penalties such as barring of access to party resources is the punishment for defying party whips. It is the mildest in the USA where parties cannot expel their members.

The stark increase in defections paints a grim picture of political ethics in India. The Karnataka debacle, where Congress-JD(S) alliance MLAs defected to the BJP in the southern state after the party’s sweeping success in the national elections also reflects the blurred lines of the federal system of governance. 17 MLAs were disqualified after the incident in July 2019, allegations of bribery were thrown at the ruling party. The Indian Parliament’s upper house proceedings were repeatedly adjourned as Congress MPs demanded that the BJP government resign.

The only solution that seems to be in tandem with the political values that India’s Constitution embodies is that once there is defection to a new party, elections in that legislator’s constituency should be reheld. Admittedly this is a long and tedious process, but the provision might itself act as a deterrent for defection itself. There is a very small chance of a defector to be reelected by his people who most likely will hold feelings of betrayal and contempt for him. No legislator would want to face his constituency so soon after defecting. On the other hand, people would get a fair chance to elect someone with clear and full information.

The implications relating to corruption have not even been discussed above as dissecting the role of money and muscle deserves a whole another article. However, it must be stated at least once that along with power, almost all defections involve promises of money and positions.

So, welcome to the seven-decades old Indian democracy. Here, parties are oligarchic and legislators are for sale.