Guest Post: The Absence of Deliberative Democracy – The Fetters of the Anti-Defection Law

(This is a guest post by Udit Bhatia. It is based on the article, Cracking the Whip: The Deliberative Costs of Strict Party Discipline in the journal, Critical Review of International Social and Political Philosophy).

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 violate their party’s whip stand to lose their place in parliament. Much of the rationale for such law – indicated by the Parliamentary Debates that went into its framing – seems to have been the prevention of horse-trading. This was evidenced in recent fears about corruption in the aftermath of the Karnataka election. But the scope of the amendment is wider than that, since it does not just forbid legislators from voting against their party during a trust motion or no-confidence vote. Rather, it also seeks to stop them from voting against the party line on any legislative matter where a whip is issued. Following the Supreme Court’s 1996 ruling in G. Viswanathan vs The Honourable Speaker, Tamil Nadu Legislative Assembly, the law binds a member of parliament (MP) to her party’s directives even if that party has expelled her. India is among a handful of states—the others being Pakistan, Bangladesh and Fiji—that bind MPs to the will of the party leadership in this manner.

The anti-defection law, thus framed, has important negative effects on parliament’s capacity for discussion. Why, one might ask? After all, the anti-defection law merely prohibits legislators from voting against the party. But this would ignore ways in which restrictions on the vote affect legislators’ voices as well. Constraints on how legislators vote can restrict the formation of opinions contrary to their party’s line. If the only position that an MP is required to endorse is the one mandated by their party, this leaves them with little incentive to engage in the demanding task of scrutinising alternative ideas. Fetters imposed by the anti-defection law can also restrict the expression of dissent through their chilling effect on backbench MPs. If a legislator criticised her party’s stance and publicly expressed disagreement, she would ordinarily be expected to demonstrate consistency by voting against it. This is particularly true where disagreement runs deep or revolves around an issue considered central to her political project. But if one criticises the party on a wide range of issues, or vehemently so on some particular issue, electors might ask why one yet continues to remain member of that party and vote in accordance with its whips. ‘Why not just vote against your party if you disagree that much’, electors could ask. Party leaders could raise the cost of cross-voting by penalising dissenting voters. At the same time, legislators do not wish to be viewed as hypocrites. As a result, putting up a façade of consistency means that one is unlikely to express opinions contrary to that one is required to vote for. Finally, the anti-defection law also restricts the uptake that legislative dissent is likely to receive. In well-functioning parliaments, even when backbenchers ultimately vote with their party, they can exercise considerable influence behind the scenes. Party leaders have to anticipate their backbench’s reaction, and put effort into allaying their concerns so as to secure their consent. In India, on the other hand, the anti-defection law takes away any such incentive for party bosses to do so, by enabling them to rely on whips rather than discussion with their backbench colleagues.

Such constraints on legislation have important implications for legislative discussion. In the first instance, they undermine the benefits of the legislature’s numerical size. There is a reason why parliaments, compared to judiciaries, are large-sized bodies. With their total strength of 545 and 250 members, the Lok Sabha and the Rajya Sabha are considerably larger institutions than the highest court in the country. This is because legislatures are supposed to pool information widely dispersed across a society. Their role is to ensure that varied interests in a large, heterogeneous country like India’s find representation through an appropriately sized body of persons. Following recent innovation in the social sciences and political theory, we conceive the primary strength of parliaments as their ability to manifest the wisdom of the multitude. For instance, following Scott Page and Lu Hong’s experimental work, Helene Landemore’s book, Democratic Reason draws upon their ‘diversity trumps ability theorem’, and argues that inclusive groups of diverse decision-makers outperform small groups of expert ones. However, the anti-defection law undermines the numerical benefit of the legislative chamber, restricting effective decision-making to a small, relatively homogenous group of party leaders.

Further, the anti-defection law can also deprive us of the benefits of having two chambers. There is a reason why the framers of the constitution insisted on establishing two legislative houses: the Lok Sabha and the Rajya Sabha. One of the primary thrusts behind this design was that law-making bodies, like any other collective, are fallible. They can make errors, pass laws in haste, or fail to adequately consider some relevant interests. Bicameralism offers the opportunity to obtain a second opinion on legislative affairs. At the moment, the ruling party lacks a majority in the Rajya Sabha. But what if this were not the case? In that case, the government, with its majority in parliament, could enact laws in the Lok Sabha, and issue a whip to see those measures through in the Rajya Sabha as well. In such cases, second chambers cannot really offer a second opinion on decisions adopted by the first chamber. For second chambers to serve this purpose, they must be constituted of a distinctive set of persons. To see why, imagine that all members of the ruling party in the second house were chosen from that party’s MPs in the first house. In this hypothetical case, some legislators would serve a dual role as members of the first and the second chamber of Parliament. This situation would be deemed unacceptable as a way of offering a second opinion rather than allowing members of the first chamber to re-affirm their own decision. After all, MPs already do so in the course of multiple readings of a bill in the first chamber. Deliberative autonomy and the ability to form independent judgments is crucial for the distinctiveness of legislators. But distinctiveness cannot be simply about the physical presence of two different sets of legislators. If the only permissible view they can voice is the one sanctioned by the party’s leadership, and if they lack the capacity to form opinions that differ from that view, then distinctiveness no longer obtains. We, then, lose, an important benefit that bicameral division of the legislature offers.

Finally, there is a third negative cost that the anti-defection law imposes on legislative discussion. Part of the role of a well-functioning legislature is to clarify for the wider public the different shades of opinion that exist on any topic. Parliamentary discussion should be oriented at demonstrating the underlying dimensions on which various political disagreements exist, locating different political parties on the space of political reasons. By stifling the expression of dissenting views, the anti-defection law undermines parliament’s ability to offer this map of opinion. In doing so, it can also foster sharp polarisation, because we fail to see how internally variegated parties are, and how there are political actors across the aisle who might actually agree with us. Consider, for example, a debate on a healthcare policy. It is valuable for us to see how, despite the opposition party leaders’ criticism of that policy, there are members within that very party who agree with the government.

In India, the deliberative costs of the anti-defection law are exacerbated by its lack of adequate intra-party discussion. Were parties to offer vibrant internal mechanisms for deliberation, we might think that the constraints they impose within are parliament are less troublesome. However, the dictatorial state of our parties precludes such a stance. So far, much of the commentary on the Indian parliament has focused on the lack of adequate discussion caused by frequent disruptions. This is understandable. The scale of disruptions and the rowdy scenes we have come to witness in recent years are worrying symptoms for the health of our democracy. But we should not assume that all our legislators need to do is behave themselves and conduct themselves in an orderly fashion. As I have tried to show, the problem lies much deeper. What they can and are likely to say is conditioned by the anti-defection law. Even if disruptions stopped, and legislators could speak more freely, parliamentary discussion is likely to fall short of deliberative ideals.

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