Gsab 054

Parliamentary Affairs (2021) 00, 1–22 doi:10.
1093/pa/gsab054
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Rethinking Defection: An Analysis of
Anti-defection Laws in India
Darsan Guruvayurappan *
National Law School of India University, Bangalore, Karnataka 560072, India
*Correspondence: darsang@nls.ac.in
Are anti-defection laws efficient? Many parliamentary democracies have enacted

anti-defection laws to prevent frequent government collapses and political insta-
bility. Using the anti-defection law in India as a reference , I argue that the party-
based anti-defection laws enacted in many Westminster-style Parliamentary
democracies do not achieve their goals, yet drastically impact representative
decision-making. I show how the entitlements and protections granted by anti-
defection laws to political parties and legislators do not achieve the purpose of
maintaining government stability and suggest two options to improve it.
Keywords: Anti-defection, Democracy, India, Law and economics, Public choice

theory
1. Introduction
What should be the standard to assess political defections? Most descriptions
of political defection in India suggest that political defection is a morally ab-
horrent act. For instance, the statement of objects and purposes of the
Constitution (Fifty-Second Amendment) Act 1985, which introduced the anti-
defection provisions through the tenth schedule, proclaims that ‘[t]he evil of
political defections . . . is likely to undermine the very foundations of our de-
mocracy.’1 This implies that political defections are inherently undesirable and
against the spirit of a representative democracy. However persuasive this rhe-
toric might seem, such a conception does not take into account the complex
relationships between the many stakeholders in a democratic process.
A political defection occurs when an elected member of a legislative assembly
votes against the directives of the party he belongs to. The method used to curb
political defections in India is the sanction of disqualification from the legislature
1
(‘The Constitution (Fifty-Second Amendment) Act, 1985 j National Portal of India’ 2020).
# The Author(s) 2021. Published by Oxford University Press on behalf of the Hansard Society; all rights reserved.
For permissions, please e-mail: journals.permissions@oup.com
2 Parliamentary Affairs

when a legislator votes against party directives. Though it seems surprising that
legislators would vote in favour of restricting their freedom, the Indian law can
be traced to the unique political milieu of the 1970s and 1980s, during which de-
fection was rampant and government stability was at an all-time low (Nikolenyi,
2016). Most western democracies do not have such strict rules against party-
defection, most notable being the UK, upon whose parliamentary system India
has modelled its own (Srivastava, 1985). In the UK, legislators are allowed to
freely vote on issues, and the most a party can do to control its members is to de-
prive them of cabinet posts or expel them from the party, none of which removes
the member from their elected post. Under no circumstances is a member forced
to vacate their seat because they voted against the party whip. This is also ob-
served in the more mature democracies like Canada, Australia, New Zealand,
USA and Japan (Kam, 2009). Many newer democracies such as India,
Bangladesh, Israel and South Africa, however, have enacted strict laws, often in
their Constitutions, to prevent political defection (Spieß and Pehl, 2004; Janda,
2010; O’Brien and Shomer, 2013).
The initial years of parliamentary democracy in India were turbulent, with po-
litical defections being rampant at the state level. In the one-year period between
1967 and 1968 alone, there occurred 438 defections (Report of the Committee on
Defections, 1968). Despite attempts to introduce anti-defection laws in 1973 and
1978, the law was only successfully enacted in 1985, after the Congress party
swept into power with an overwhelming majority (Sachdeva, 1989).
Constitutionality challenges to the anti-defection law were brought before the
Indian Courts almost immediately after the passing of the 52nd constitutional
amendment in 1985. The Punjab & Haryana High Court upheld the constitu-
tional validity of the law in 1986, in Prakash Singh Badal v. Union of India.2 The
Supreme Court upheld the constitutional validity of most of the provisions of the
Act in later decisions. One of the more interesting aspects of the decision in
Prakash Singh Badal is the Court’s fashioning of the political party, instead of the
legislator, as the fundamental unit of the Indian democratic system.3 The
Constitution of India did not have a single mention of political parties until the
insertion of the tenth schedule by the 52nd constitutional amendment; yet, the
Court ignored the political realities and experiences of the past several decades in
order to reconceptualise the workings of parliamentary democracy in India
(Sachdeva, 1989). This reforging of political organisation was completed by the
2
1987 AIR P&H 263.
3
ibid para. 23.
Rethinking Defections 3

Supreme Court in Kihoto Hollohan v. Zachillhu And Others,4 which upheld the
supremacy of political parties’ rights against those of individual legislators.5
In the Indian context, Gehlot has traced the historical development of the
anti-defection law and has provided a general critique of the restrictive provisions
of the anti-defection law (Gehlot, 1991). Khanna and Shah (2012) have analysed
the impact of the anti-defection law on the free-speech rights of legislators, and
have also assessed the law vis-à-vis its goals of combating corruption. Yet, there is
a dearth of literature analysing the broader electoral impact of anti-defection
laws—how it affects candidates, voters and the parties in elections.
In the past decade, political parties in India have weaponised the anti-
defection law, using it to suppress internal criticism, and to exploit and take
down governments with precarious majorities. Karnataka in 2019, for instance,
witnessed the fall of such a coalition government engineered by the opposition
Bharatiya Janata Party, by convincing a small number of legislators to defect from
their parties (Rodrigues, 2020). Similar behaviour was observed in Maharashtra
in 2019 and a host of other states (Economic and Political Weekly, 2019). Such
situations arise when competing parties secure similar number of seats in elec-
tions and no party has a clear mandate. In all these cases, the modus operandi was
the same; political parties would bid against each other in a desperate attempt to
secure the loyalties of legislators, often squirrelling them away in secluded resorts
to keep them under the party watch and prevent horse-trading. Opposition par-
ties that successfully attract legislators from the ruling party often reward the
defectors with ministerial positions, support during bye-elections, and other ma-
terial benefits (Reddy, 2015). The present formulation of the anti-defection law,
unfortunately, still gives errant legislators opportunities for rent-seeking by trad-
ing away their position in the legislative body for material gains. The originally
envisaged purpose of the law was to increase the stability of governments; how-
ever, the recent applications of the law suggest that this intent has been
completely turned on its head (Menon, 2021).
Throughout the article, I posit that a greater focus on constituency-level poli-
tics is normatively preferable. I do this for two reasons: First, there is strong evi-
dence that voters do not solely vote for parties, and that the candidate fielded has
a significant impact on electoral outcomes (Ziegfeld, 2015). Empirically, in India,
there exist strong ties between individual legislators and their constituencies,
which is reflected in the work that these representatives do (Maheshwari, 1976;
Verma, 2012). Elections are also understood as a method of holding elected rep-
resentatives accountable (Frasure and Kornberg, 1975; Hellwig and Samuels,
4
1993 AIR SC 412.
5
ibid, para 44.

2008; Ashworth, 2012). Given the breadth of cultural and socioeconomic diver-
sity across the country, a top-down model of representation would sever the
constituent-representative tie that currently exists. Second, a party-centric ap-
proach would be unrepresentative due to the lack of well-developed internal
democratic mechanisms in Indian parties. For a party-centric approach to repre-
sentative democracy to be effective, parties must have fair and open internal elec-
tions and transparent mechanisms for decision-making. In India, unfortunately,
such mechanisms do not exist and parties’ internal leaderships are hardly ever
chosen through popular elections (Dhamija, 2017; Hasan, 2017; Ghosh, 2020;
‘Only One of India’s Top Five Parties Holds Free Internal Elections. Guess
Which?’ 2014). A non-constituency-based model of representation in India,
therefore, is an inversion of the broadly understood ideas of representation, and
might risk the alienation and marginalisation of a large number of citizens.
In such a context, I argue that the anti-defection laws in India radically change
the popular understanding of representation, and has had a profound impact on
shaping mainstream political discourse. Throughout this paper, I shall use the
metric of efficiency to evaluate the effects of political defection. An efficient out-
come is when an elected legislator enacts or lobbies for policies that are consistent
with the policies preferred by a majority of their electorate.6
Section 2 presents a simple model to describe the behaviours of voters and
candidates in an election. This model is then used to show how the current anti-
defection law makes the electoral process inefficient by (1) constraining candi-
dates from offering the policies that are desired by their constituents and (2)
shifting the focus of the political discourse from the constituency level to the na-
tional or state level. Section 3 analyses the Tenth Schedule of the Indian
Constitution, and the jurisprudence around it, to determine how the rights and
entitlements of parties and legislators are presently distributed and protected.
This section argues that the current legal regime results in undemocratic deci-
sion-making. Through the lens of the law and economics framework of property
and liability rules, I suggest different methods through which the rights and obli-
gations between a party and its legislators can be redistributed to make the demo-
cratic process more efficient.
6
While alternative formulations of efficiency are possible, this definition broadly covers the standard
understanding of, and expectation from democratic processes. For instance, one could also consider
efficiency to be when national policy preferences are adhered to. Additionally, the definition of effi-
ciency may consider alternative decision-making rules, such as a 2/3rd majority. But I shall consider
an efficient outcome to be when a legislator tries to enact policies that are preferred by at least 51% of
his constituents.

2. Voter Preference, Choice Diversity and Inefﬁciency
This section presents a simple model of the electoral process to show how the
anti-defection law leads to a reduction in the choices available to voters. Anthony
Downs’ model of electoral competition considers political parties in a democracy
as being ‘entrepreneur[s] selling policies for votes’, and competing with other
parties for the same (Downs, 1957; Rowley, 1984; Holcombe, 1989). Downs
assumes that every voter is rational and has a fixed, single-peaked preference in a
unidimensional range of policies, where each political party’s policy offerings can
be arranged in a fixed manner. In addition, I also assume that voter preferences
are fixed in the short-term, though it may be variable in the medium to long-
term.
This simple description of both sides of the electoral process—political parties
and voters—is sufficient to understand the constraints that the anti-defection law
imposes. The ‘marketplace of policies’ conception of the electoral process allows
us to use standard economic models to determine how the seller (candidates and
political parties) reacts to the demands of the buyers (‘voters’). Given free compe-
tition between the parties and no transaction costs, candidates will try to offer
policies that will attract the maximum number of voters (Callander, 2005).
Most democracies use a first-past-the-post system which requires a candidate
to obtain the highest number of votes among all the candidates (Blais and Carty,
1988; Norris, 1997). If we assume a normal (bell-shaped) distribution of voter
preferences, then the policies offered by candidates will increasingly shift towards
the median policy preference. If each candidate were free to set their agenda, elec-
tions will be mainly concerned with constituency-level issues; candidates will of-
fer their constituencies policies that are close to their preferences, and each
candidate will later negotiate with the other legislators to obtain concessions
favourable to their constituency.7 This is broadly what happens in countries with-
out anti-defection laws like the UK, USA and Canada.
In most Westminster-style democracies, the executive is accountable to the
elected legislature, and control over the executive branch can only be obtained if
a certain number of legislators join together (Ackerman, 2000; Kumarasingham,
2013). In most countries, the support of at least half of the total number of seats
in the legislative body is required to form the government. Parties, therefore, are
formed prior to elections with the objective of trying to obtain a majority of the
7
I assume that there are no local parties or independent candidates that only compete at a state and
constituency level. Local parties may be able to compete more effectively than national parties, but
they have their own constraints which may discourage voters from voting for them.

legislative seats. In this regard, parties can be described as aggregations of individ-
uals who subscribe to a similar set of policies and ideologies.8
Whereas individual candidates are concerned with getting a majority of votes
at the constituency level, political parties aim to obtain a majority of votes at the
state and/or national levels. If the population of a country were relatively homo-
geneous, then the candidates’ and parties’ interests would align.9 However, when
the population is heterogeneous, the goals of the party and individual candidates
may diverge since the median policy preference of a given constituency might be
different from the median policy preference at the state or national level. In the
absence of restrictions, however, candidates will still try to offer the median policy
preference of each constituency, while trying to not contradict the party policies;
party leaders will simultaneously try and nudge each candidate to push their
offerings towards the national policy preference.
2.1 Modelling Elections

Anti-defection laws, however, drastically alter this process. India’s anti-defection
law, for instance, prevents a legislator from voting against their parties. Even
though anti-defection laws do not apply prior to being elected, its mere existence
will deter candidates from offering policies that differ substantively from that of
their party. Based on the assumptions above, I propose a simple, two-step model
for the pre-electoral processes in India. Although this might vary depending
upon the existence of different institutions, these processes necessarily take place
in other democracies as well.
The first step involves pre-electoral research and policy formulation. Before
the commencement of elections, political parties, through internal processes of
market research, select policies that they think will appeal to the largest number
of voters, at the state or national levels. At this point, parties can choose between
infinite policy choices.10 The only consideration for the party is to maximise the
number of votes it receives.
8
An ideology is simply a set of standards that allow a voter to quickly assess the policies of a candidate,
without having to individually analyse their every policy position. Given the high costs of assessing ev-
ery offered policy with its expected utility, these ideologies offer a simple heuristic to choose a candi-
date. See (Jolls et al., 1998; 66Bendor et al., 2011).
9
This might also explain why states like Himachal Pradesh, Sikkim, Mizoram, Manipur and Goa (all of
which have relatively lower populations) have experienced long periods of rule by single parties.
10
Quantitatively, this may be described in the following manner. Prior to elections, political parties de-
clare their policy Px 2 policy space P [1, 1]. The median policy preference of a constituency is repre-
sented by Cx 2 P, whereas the median policy preference at the state and national levels are Sx and Nx 2
P. In national and state elections, the goal of political parties is to select Px in such a manner that Px –

In the second step, aspiring candidates choose the parties under whose plat-
form they will contest the election. Candidates in each constituency assess the
policies of each party in order to determine which set of policies will appeal to
the largest number of voters in his constituency.11 Individual candidates, being
situated closer to their constituencies, have a better understanding of its policy
preferences. Once all parties have committed to a policy position, an aspiring
candidate can only choose between these policies. A candidate who is represent-
ing a party cannot offer their voters policies that deviate substantially from the
party’s position. Although anti-defection laws are only applicable to elected legis-
lators and not to candidates, the mere existence of the restriction will prevent a
candidate from making promises to his constituents that are in opposition to his
party’s stated policies.12
Anti-defection laws drastically affect both these steps. The policies preferred at
the national and state levels may be substantially different from the policies pre-
ferred at the constituency level. For instance, a promise to build more nuclear
power generation plants might be in the interests of a majority of the national
electorate, but the voters in the constituency where the plant will be built might
not be too keen on it. Similarly, if a party commits to a strong set of anti-
immigration policies, then a candidate of that party will have no room to ma-
noeuvre in a constituency with a large immigrant population. Since candidates
and legislators cannot substantially deviate from their party’s position, their only
choice will be to shift to another party. It might seem incongruous, but the anti-
defection law may actually increase the chances of defection!
Candidate-level dissatisfaction might also explain why anti-incumbency is a
powerful force in India (Verma, 2012), and its upsurge post-1990 (Linden, 2004;
Borooah, 2006; Uppal, 2009). Under the anti-defection law, decision-making in
the government is inevitably centralised. Party leaders can take decisions
Sx ¼ 0 and Px – Nx ¼ 0. Given that Px is an aggregate, it is inevitable that in some circumstances, the

difference Px – Cx will be substantial. For a rational candidate belonging to the party P in such a con-
stituency, defection would be highly beneficial if the difference between the other party’s policy posi-
tion Ox is closer to that of the constituency, such that Ox – Cx < Px – Cx.
11
I assume that all aspiring candidates must pick a party in order to be elected, and cannot run as an
independent candidate. Although running as an independent candidate is allowed, few such people
are actually elected. For instance, in the 17th Lok Sabha, a mere 0.74% of the house were independent
members not affiliated to any party, see (‘Seventeenth Lok Sabha Members, Party-Wise List’, 2020).
12
Making such promises may be harmful to the candidate in three ways: first, voters may be aware of
the legislative procedures, and will immediately call the candidate’s bluff and second, candidates who
make such promises and are unable to act in accordance with it may face severe reputational harms,
which might drastically affect their chances of re-election and third, candidates who do act against the
party’s directives will be immediately disqualified. The mere existence of the anti-defection law, there-
fore, will greatly limit what a candidate can offer his constituents.

independently, without consulting other members of the party. There is no need
for consensus-building given that all legislators are bound by the party-whip in
any case. The party-leader, being situated farther away from other constituencies,
faces high costs of acquiring information regarding policy preferences. This may
often result in a policy selection that is widely divergent from the median policy-
preferences of many constituencies, resulting in anti-incumbency sentiments in
these constituents. In such cases, a candidate seeking re-election will have no
choice but to defect and join another party whose policy offerings are closer to
those demanded by the constituents.13
Additionally, the policy choices available to a constituency may not at all be
the ones they actually prefer, leading to inefficient outcomes.14 Since candidates
can only choose among the policies that have been set by the parties, all they can
do is hope that it is close to the constituency’s median preference. This becomes
inefficient for both, the candidates and the voters. Since candidates cannot offer
the policies that are preferred by the voters, they may attempt to influence voters
through other means. Though we assumed initially that voters are perfectly ratio-
nal beings, behavioural modifications are required to more fully understand and
predict human actions (Thaler and Sunstein, 2009; Zamir and Teichman, 2018).
Voters have bounded rationality and limited resources to devote to analyzing pol-
icies, which can be easily exploited. This means that parties, in the medium to
long-term, can pick a few issues that have broad appeal and suppress discussion
related to other policies in order to shift voters’ preferences (Annapurna, 2015;
Sahoo, 2020).
Through aggressive campaigning, parties may thus choose to set policies that
are less development-oriented, and more populist in nature. Religion, caste, na-
tionalism and other such identities offer easy paths to create policies that appeal
to the lowest common denominator, though it may result in high social costs.
The quality of policies offered reduces, and everybody suffers. Highly polarised,
identity-based electoral campaigns are more likely to occur under the existence of
anti-defection laws, since candidates and legislators are greatly constrained in
13
A candidate seeking re-election can also influence his constituents in another way—constituency de-
velopment funds, see (Blair, 2017). Committees may also offer a way to influence policy, however,
they may not be completely effective, see (Kanwar, 2019).
14
In other words, candidates cannot choose any point on the policy preference curve, and can only
choose between the policies offered by the different political parties. Whichever party’s policy offerings
is closest to the policy preference of the candidates’ constituency is the one that they’ll choose. This
changes the original buyer/seller dynamic by making the candidate a buyer of policies from the politi-
cal party. The candidate has to now assess which of the parties’ policies are closest to that of his con-
stituents, and he must commit himself to it. Since the candidate can only pick between the committed
policy preferences of the parties, he cannot directly offer better policies to the voters.

their ability to offer meaningful policies that might be preferred by their
constituents.
While all of the issues pointed above also occur in countries without anti-
defection laws, it will be more pronounced in countries with stringent anti-
defection provisions. To briefly summarise, anti-defection laws make the electoral
process inefficient in two ways: first, it prevents aspiring candidates from offering
the policies preferred by their constituencies, and second, it reduces the choices
available to the voters. These concerns, however, are magnified during the legisla-
tive process as shall be shown in the next section.
3. Property Rules and Entitlement Allocation

The previous section showed how anti-defection laws, particularly the method
used in the Indian Constitution, reduces efficiency in the electoral process. This
section analyses how the current legal regime balances the rights of the political
party and its legislators, and how these rights can be re-allocated and improved.
Though my focus is on the Indian Constitution, these findings are equally appli-
cable to other countries with similar party-based anti-defection laws.
3.1 Anti-defection Laws and the Democratic Deficit

The current anti-defection regime paternalistically assumes that the party, rather
than individual legislators, is best suited to take decisions. However, as described
in the previous section, an efficient outcome is more likely to occur when the in-
dividual legislator is allowed to decide the policies that will be beneficial to his
constituents. Further, as the number of participants in the decision-making pro-
cess increases, the external social costs that may arise as a result of the decision re-
duce (Buchanan and Tullock, 1962, 3:215). However, the costs of making
decisions will also increase as a result of a greater number of participants being
involved in the process.15 Intuitively, this means that as the number of people
increases, it becomes difficult to forge a consensus between all of them; however,
if more people are involved in the process, the likelihood that a decision will have
a highly adverse impact on a majority also decreases. Having a large number of
people partake in the decision-making processes, therefore, will result in better
outcomes compared with decisions taken by a few party-leaders.
The Tenth Schedule, unfortunately, drastically reduces the number of partici-
pants involved in the decision-making process. In addition to the reduction in
the pre-electoral policy-choices, the Tenth Schedule further restricts the scope for
15
If consensus of a large number of people is required to arrive at a decision, then hold-out costs and
free-rider costs also become significant.

more diverse policies to be deliberated in legislative bodies.16 The strength of the
Lok Sabha currently stands at 539 (‘Seventeenth Lok Sabha Members, Party-Wise
List’” 2020) and most motions in the Lok Sabha, barring constitutional amend-
ments, impeachment and a few others, require only a simple majority to pass. On
paper, this means that at least 270 legislators need to agree on a motion before it
can succeed. However, because of the anti-defection provisions, a party leader
can issue a whip to force all the legislators belonging to that party to vote in favor
of it. This is made worse considering that there are only a few important parties
with a large number of legislators. In the current Lok Sabha, there are only 11 po-
litical parties that have more than 5 members belonging to each. This means that,
theoretically, a motion can be passed solely because 11 party leaders want it to, re-
gardless of the opinions of the other 500 legislators.17 Presently, a single party has
a simple majority of the seats in the Lok Sabha and most motions can be passed if
the leader of that party wants it; and a special majority can be obtained with the
consent of just one or two other party leaders.18 Given that the number of partici-
pants required for a consensus has drastically reduced, it is almost certain that
higher social costs will follow.19
As an example of how the anti-defection law makes the process undemocratic,
consider a legislative body that has only 10 members, with elections and legisla-
tive decisions being made through a simple-majority voting system. Assume that
each of these members is elected from a constituency that has five voters each. In
order for a member to be elected, under the plurality rule, he only requires the
support of three of his constituents. Additionally, since we adopt a simple-
majority rule, in order to pass a law in this body, only 6 out of the 10 members
have to support the law. These 6 seats, however, can be obtained through the
votes of just 18 out of the 50 electors! (Buchanan and Tullock, 1962, 3:220).
Effectively, the preferences of just 36% of the total electorate can be imposed on
the entire population, if we adopt a simple majority rule (Blais and Carty, 1988).
Under the Tenth Schedule, however, if all 6 of the legislators belong to the same
16
I would like to credit Prof. Sanyukta Chowdhury’s Constitutional Law course taught at NLSIU,
Bangalore for the idea of extending Buchanan’s framework to assess anti-defection laws in India.
17
The absence of mechanisms for internal democracy worsens this problem since these party leaders
are often unelected and not accountable to the public. See (Hasan, 2017; Kumar Ghosh, 2020).
18
The Bhartiya Janata Party, at the time of writing, controls 302 seats, followed by the Indian National
Congress, Dravida Munnetra Kazhagam and All India Trinamool Congress with 51, 24 and 22 seats,
respectively.
19
Given that party members are allowed to walk-out or remain absent without incurring the anti-
defection provisions, it is possible for a member to ‘vote against’ the motion by abstaining. However,
as long as the quorum of the house is met, a few party leaders will still be able to control the output of
the house.

party, and one of them is the leader, then the preferences of just 3 out of 50 voters
can determine the policies for everybody (Thomas, 2009).
3.2 Entitlements and Allocations

Before proceeding, it would be useful to define some of the ideas and terms I will
be using in this section. Calabresi and Melamed (1972), in their seminal 1972 pa-
per, defined three methods through which entitlements or rights are protected by
the law (Krier and Schwab, 1995). The first method—property rules—protect
entitlements by preventing another from intruding upon its enjoyment without
entering into a lawful transaction with the holder of the entitlement. For instance,
if I own a car, another person cannot deprive me of it without entering into a
contract to obtain possession. In case someone takes it out of my possession or
prevents my enjoyment of the car, courts will either order restitution or an in-
junction against further trespass. The second way an entitlement can be protected
is through liability rules. For entitlements that are protected in this manner, an-
other person can intrude upon the entitlement-holder’s enjoyment of it, and they
will have to post-facto compensate or pay the entitlement-holder an amount that
will be determined by the court. The third and final method of protecting entitle-
ments is through inalienability rules. Under such rules, an entitlement is pro-
tected absolutely against all infringement. For instance, a minor is entitled to not
have any contracts enforced against him, and all such contracts are null and void.
The key part of this framework, however, is the conceptual separation between
entitlements and the manner in which they are protected. By re-framing the ques-
tion of electoral representation in terms of entitlements and protections, we ob-
tain an altogether different view of the issue. Although property and liability rule
models are seen more commonly in private law contexts, its application to anti-
defection laws can yield novel results. In this section, I shall first try to distill the
exact nature of the entitlements provided by the anti-defection law, and then, I
shall analyse how it is being protected.
Under Para. 2 of the Tenth Schedule of the Indian Constitution, ‘a member of
a House belonging to any political party shall be disqualified for being a member
of the House’ in two circumstances: first, if he voluntarily gives up membership
of his party or second, if he votes in the house contrary to a direction issued by
his party without the consent of, or condonation by, the party. Under this provi-
sion, therefore, a member is obligated to cast his vote in accordance with the
party’s directions. Currently, the entitlement to the legislator’s vote has been
assigned to the party to which the legislator belongs to. This is unlike countries

like the USA and the UK that grant such an entitlement to the individual legisla-
tors themselves.20
Having identified the entitlement and its assignment, the next step is to iden-
tify how it is protected. Although the party has an entitlement to the legislator’s
vote, it is by no means an absolute entitlement. When a right is protected by a
property rule, the main remedy for infringement is a return to status quo, insofar
as possible. The anti-defection law, however, does not return a lost vote to the
party; but it only imposes a predetermined fine on the legislator, in the form of
disqualification. Through a disqualification, the party is ‘returned’ the seat and
the vote that the defecting member had possessed.21 The anti-defection law,
therefore, only protects the party’s entitlement through a liability rule. This
means that the legislator can infringe upon the party’s entitlement, provided that
they are willing to pay for it with their seat. This characterisation is further bol-
stered by the fact that a disqualified legislator is also not barred from competing
against his party in the bye-elections post disqualification.
The domain of legislative processes is slightly unique in that trade in votes is
not directly allowed (Standard, 2008). Even if legislators wish to trade votes on
specific issues, by engaging in ‘logrolling’, these bargains are virtually unenforce-
able. Trade between a party and its legislators cannot, therefore, happen quite eas-
ily in the current system. This problem is made worse under the Tenth Schedule
because parties no longer have an incentive to even negotiate with its legislators;
the high consequences of defecting—losing one’s seat—will deter legislators from
defecting in all but the most serious of disagreements. In other words, there are
very high transactions costs involved in trading either between legislators or be-
tween legislators and their parties. The manner in which we initially allocate the
entitlements, therefore, is very important (Coase, 1960). Clearly, the current sys-
tem allocation of entitlements is not only inefficient, but also undemocratic. But
what is the alternative? The rest of this section shall focus on two questions: who
should be given the entitlement and how should it be protected. In making a
choice, its impact on two key factors—efficiency in policy-making and stability of
governments—must be carefully weighed.
20
The US and UK Constitutions do not prescribe any restrictions on a legislator’s vote, which results
in the vesting of an absolute entitlement upon the legislator to vote according to their wishes.
21
This is a simplification of the existing regime, under which a bye-election would be conducted upon
disqualification. As an aside, this reflects the inherent contradictions introduced by the Tenth
Schedule. Through the Tenth Schedule, the Constitution assumes that it is the party that wins the elec-
tion and not the member. Such a conception, however, is inconsistent with the fact that upon disquali-
fication, bye-elections are conducted in the constituency. If the party were truly the centre of India’s
democracy, then that seat should simply be filled by another nominee of the party.

The simple choice would be to adopt the UK model, which is to transfer the
entitlement to the legislator and protect it with an inalienability rule. Under such
a regime, every legislator will individually assess each policy, and its repercussions
on the legislators’ constituency, and vote accordingly. Ideal though this may
seem, it has not worked out well in the past. Pre-1985, India had such a system
and this led to extremely high decision-making costs in the form of frequent gov-
ernment collapses, re-elections and aisle-crossings (Kamath, 1985; Kaur, 2012).
Additionally, such a system also leads to very high holdout costs, where a single
legislator could threaten to revoke their support and collapse the government.
By tinkering with the entitlements and the manner of protection, as described
above, we can improve the existing anti-defection laws to make it more efficient.
I shall outline two possible ways in which this can be done: first, by granting the
party a limited right to force a legislator’s vote and second, by limiting the current
entitlement to only government defeating motions.
3.2.1 Option 1: Decrease the entitlement and increase the protection In this, we
modify the party’s entitlement such that the party is entitled to the votes of every
legislator belonging to that party provided that a portion of that party’s legisla-
tors, under a chosen decision-making rule, agree to the motion. This entitlement
is then protected using a property rule. Under the present law, the party is only
able to enforce its rights after the legislator has voted, and the available remedy is
only punitive, and not restitutive. The suggested modification would ensure that
the parties’ entitlement is protected ex-ante rather than ex-post. Unlike the cur-
rent system, the party-whip will not be able to unilaterally force legislators to act
in a certain way, unless the party collectively agrees to the motion. Under this sys-
tem, the only way in which the party can be deprived of its entitlement is for a
member to resign before a vote.
The following example will clarify this method: Assume that a party has 100
legislators and that the chosen decision-making rule is that of a special majority,
or 2/3rd of all the members. This means that if, for a given motion, 2/3rd of the
legislators—67 legislators—belonging to that party vote in favour of a motion,
then the remaining 1/3rd of the legislators’ votes—33 votes—automatically get
counted in favour of the motion. If 2/3rd of the members do not decide to vote
in a certain manner, then each legislator’s vote is individually counted.
Prior to 2003, the Tenth Schedule contained an exclusion against disqualifica-
tion in cases where one-third of the legislators in a party collectively decided to
split away from the main party (Law Commission of India, 1999; Kumar, 2003).
Another way of looking at the exception is that it collectively preserved legislators’
right to vote as long as they had the support of 33% of the party’s strength. In
other words, a party whip could be defied, provided that 33% of the party

legislators agreed to defy it. This exception, however, was removed by the
Constitution (Ninety-First Amendment) Act, 2003, which noted in its Statement
of Objects and Purposes that excluding collective splits from the anti-defection
law had a ‘destabilising effect on Government’. The present option can be con-
ceptually considered as an inverted formulation of the pre-amendment position.
The selection of the decision-making rule will primarily determine the efficacy
of this system. Of course, a party can select a decision-making rule such that the
party’s leader can decide how every vote should be cast; however, that scenario is
no worse than the existing system. The legislature, ideally, should select a
decision-making rule by balancing the decision-making costs and external costs.
Ideally, a simple-majority rule should be selected since the choice is between two
options (May, 1952). Furthermore, given that this option simply results in an is-
sued whip being rendered unenforceable, this will not result in a destabilising
conflict within parties in case there is an even split in opinion. However, this
choice of decision-making rule will be the result of historical circumstances and
preference, and any choice that requires the support of more than 5–10% of the
party will be superior to the existing system.
This method has four important benefits compared with the current system:
First, it increases the decision-making costs within the party such that a single
leader cannot dictate the voting patterns of the entire party. This will ensure that
a reasonable consensus is built within the party. Any alternative decision-making
rule, even if imposed by law, will make the decision-making more efficient.22
Second, it increases certainty in government decision-making. Under this rule,
unless a legislator quits or defects before a motion is called for voting, their votes
will be counted if the party, under its decision-making rule, decides to vote in a
certain manner. Therefore, before a motion is even called for voting, a party
leader will be able to determine if he has enough votes for it to pass. Third, it
encourages greater inner-party democracy. Under the current system, each legis-
lator ostensibly has the ability to vote on every matter according to their evalua-
tion of it. However, in reality, it is the party-leader that is the centre of decision-
making (Rajan, 2019). The force exerted by party leaders on every vote is cur-
rently hidden behind a veil, and altering the entitlement in this manner brings
out the true nature of decision-making in parties. Finally, it encourages delibera-
tion since the cost of raising conscientious objections is greatly reduced. Under
the present system, legislators either have to agree with all the party’s objectives
and actions, or they will consider as defectors. This suggestion would enable legis-
lators to take more nuanced stances with respect to individual issues.
22
For instance, a simple majority rule requiring only 50% of the members to support a motion will still
improve the existing system substantially. Increasing the threshold required, while also increasing the
decision-making costs to some extent, will make the quality of decision-making far better.

3.2.2 Option 2: Break apart the entitlement and re-distribute it In this option,
we break apart the existing entitlement of parties into two parts: an entitlement
to members’ votes on matters that threaten the stability of the government, and
an entitlement to votes on other matters. We assign the first entitlement to the
party so that the party is entitled to the votes of its legislators for motions such as
confidence motions, financial budgets, money bills, etc. The second entitlement
is assigned to the legislator so that each legislator is free to vote on every issue
according to their interests. By splitting the entitlements in this manner, there is
an implicit recognition that legislators and parties do not need to adopt an all-or-
nothing approach to law making. It is possible that a majority of legislators sup-
port a government, though they may not support a particular bill or motion. By
splitting the entitlements, the stability-goal of not having frequent government
collapses is balanced with the representation-goal of diverse decision-making.
The efficiency of this model, however, will primarily depend upon the nature of
protection granted to these protections.
Let us first take the case of protecting both entitlements with liability-rules.
Under a liability rule, the only penalty for voting against the government, even in
government-defeating motions, would be disqualification. When a party has
been ejected out of power by a few errant legislators, getting them removed from
the legislature would offer hardly any succour to the party. Given that defectors
are often re-elected (Bharadwaj, 2019) and even rewarded (The Hindu, 2020) for
their defection, a liability rule that only provides for disqualification does little to
deter defection. Several authors have suggested similar changes to the anti-
defection law (Kumar, 2003; Burman, 2009; Joshua, 2010) but none have
accounted for this problem.
How would the situation differ if we relied on property rules to protect the en-
titlement? As currently described, such an approach would lead to undesirable
outcomes. This is because the first entitlement would ensure that a government-
defeating motion cannot be passed at all, as any legislator who defects in such a
context would be swiftly disqualified and the party would be restituted of its vote.
Additionally, the second entitlement would still allow legislators to vote against
their party in all other ordinary matters. Given the fusion between the legislature
and the executive in India, under this model, a government that has lost support
in the House to pass ordinarily bills will still be able to exert influence through ex-
ecutive decision-making. The no-confidence motion is the primary method in
the Westminster system to hold the executive accountable, and such a protection
would irreparably destroy this balance. Protecting the entitlement with a property
rule, therefore, might not be desirable.
One method to resolve this issue would be by incorporating an additional
decision-making rule, like in the first option. Under such a scenario, a party

would be entitled to the votes of its members in motions that threaten the stabil-
ity of the government, as above, provided that a majority of the party’s legislators
support the party. If the party does not obtain a majority of votes from its legisla-
tors, then all of its legislators will be free to vote on the motion, even if it threatens
the stability of the government. Given that the proposed protection for the party’s
entitlement is a property rule, one could also formulate additional protective
measures to the party’s right. One such protection might be that a party’s legisla-
tor will always have to support that party throughout the term of the legislative
body, even if they switch parties and are re-elected. Conceptually, this is a recog-
nition of the fact that the party’s entitlement applies personally against the legisla-
tor in question, meaning that it cannot be circumvented by opportunistic
defection and re-election.
The qualified property rule, which would prevent a legislator from voting
against their original party, would therefore provide a greater deterrence against
defection. This would also ensure that an elected government would still be able
to carry out its executive functions, even if they find it difficult to operate in the
legislative domain. This solution also ensures that all party members can freely
debate, discuss and vote on other motions and bills without fear of being dis-
qualified, thereby striking a balance between the interests of the individual legisla-
tors and the party. The above characterisation also reveals two other possible
combinations, which can be obtained by protecting the parties’ entitlement with
a property rule and the legislators’ entitlement with a liability rule, and vice versa.
These combinations would present a fascinating set of alternatives to the pro-
posed suggestions, and can be the subject of future study.
It must be noted, however, that neither of these solutions will drastically in-
crease the stability of governments compared with the existing system, but both
of these suggestions are, at the very least, Pareto-optimal in terms of stability.
However, given that legislators will now be able to explore a greater range of poli-
cies under these suggestions, it should result in fewer defections that are moti-
vated purely by re-election desires. The protective measures suggested in the
options should also restrict opportunistic defections.
But in cases where parties have narrow margins, ruling governments can still
be brought down through instigated resignations, unless additional protections,
such as those mentioned in the second option, are instituted. Stability, however,
cannot be the sole metric when designing anti-defection legislation.
Accountability is also a fundamental aspect of democracy (Dowdle, 2006;
Vermeule, 2007). If legislators genuinely do not have confidence in the govern-
ment, then they must be allowed to vote against it, and they will always be able to
do so as long as they are allowed to resign from their posts (Saini, 1971). The
main goal of these suggestions, however, is to make decision-making more repre-
sentative. The maturity of political discourse, prevalence of corruption, faith in

government institutions and desired level of citizen-involvement in government
affairs all play an important role in determining the appropriate choice.
4. Conclusion
Prior to the enactment of the 52nd amendment, no restrictions at all were placed on
how a legislator could vote. The anti-defection law was passed to prevent excessive
horse-trading and frequent government collapses due to defectors, characterised by
the Hindi expression, ‘Aya Ram, gaya Ram’, which translates to ‘Ram has come,
Ram has gone’ (Diwan, 1979). The current anti-defection law, however, has an over-
inclusive reach which leads to highly inefficient and unrepresentative policy-
making. Even before elections are completed, the influences of the anti-defection
law result in a gross reduction in the range of policy choices available to a voter. It
greatly takes away from the ‘representative’ aspect of our representative democracy
and concentrates power within a few party officials. Democratic processes such as
consultation, consensus-building and lobbying all become redundant. As pointed
out by other authors, however, the anti-defection law might not be the most suitable
avenue to curb corruption in politics ( Khanna and Shah, 2012) and other legislative
and judicial measures might be more suitable to tackle that goal (Deshpande, 1998).
The greatest loser in all this, unfortunately, is the voter, who is effectively deprived
of any meaningful choice between candidates.
Analysing the existing law through the framework of entitlements and protec-
tions provides us with many possibilities for future improvement. By altering the
entitlements of the parties and the legislators, a balance can be struck between
their diverging interests. Identifying the existing entitlements and protections
allows us to formulate alternatives that are more consistent with the objectives of
the anti-defection laws. However, the choice of improvement is not so straight-
forward. Two methods have been suggested in the paper: first, granting the party
an absolute right to a legislator’s vote under specific, more democratic circum-
stances and second, limiting the anti-defection provisions to only motions that
might undermine the stability of the government.
Although this paper tries to suggest alternatives that are an improvement over
status quo, it is not intended as a one-stop panacea to all the problems plaguing
the system. In particular, this paper seeks to assess the flaws of the anti-defection
law from a perspective of decision-making costs and allocations of entitlements.
In doing so, it does not consider other pertinent issues such as electoral funding
models and socio-cultural and communal factors. It is not to say that these fac-
tors are unimportant, but only that the view of this paper does not encompass
these elements. Additional research on these factors is necessary before these ideas
can be developed to the point of implementation, and this paper only seeks to
kick-start that process. The choice of how the entitlement to vote is allocated in a

democracy depends upon the needs and goals of contemporary society. In the
1980s, stability and consistency were pressing concerns; but Indian society has
certainly matured since then and the laws must reflect the same.
Acknowledgement
The author would like to thank Prof. Rahul Singh, and the three anonymous ref-
erees, for their feedback on earlier drafts of this article.
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Are anti-defection laws efficient? Many parliamentary democracies have enacted

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2.1 Modelling Elections

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Sx ¼ 0 and Px – Nx ¼ 0. Given that Px is an aggregate, it is inevitable that in some circumstances, the

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3. Property Rules and Entitlement Allocation

3.1 Anti-defection Laws and the Democratic Deficit

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3.2 Entitlements and Allocations

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