The conflict has been between the need to bring about political stability and order on the one hand, and respecting the democratic freedoms of Members of Parliament on the other.
Party crossovers have been a dime a dozen in South Asian democracies. They were rampant in India in the 1960s, 70s, and 80s. They were symptomatic of widespread political corruption, political instability, and moral decay in society at large.
India and the Maldives have passed anti-crossover or anti-defection laws to ensure political stability. India did so in 1985 and the Maldives in 2024. Some democratic organisations attempted to work out legislation to curb defections but failed due to vested interests blocking the efforts.
But is an anti-crossover law the answer to MPs switching sides and creating instability? Will the law work satisfactorily, or has it worked satisfactorily? Opinion in the Maldives and India is divided, with some arguing that it ensures stability and others claiming it only curbs MPs’ democratic rights and promotes inner-party dictatorship.
Maldives
The Maldivian government, led by President Mohamed Muizzu, recently got the Majlis (parliament) to pass an anti-crossover or anti-defection law to ensure political stability in parliament and strengthen loyalty to political parties that put up candidates and got them elected.
Parliament amended Article 73 of the Maldivian constitution to make MPs lose their seats if they defected to another party or were expelled from their party. Previously, MPs ditching their parties were only expected to resign. There was no provision for what would happen if they refused to resign. Under the amended rules, however, ousting from parliament will be automatic.
The Maldivian parliament also passed the State’s Debt Bill and the Fiscal Responsibility Bill, in line with the recommendations of the parliament’s Public Accounts Committee. Another new measure was the centralisation of the planning of development schemes to ensure coordinated development. The constitutional amendments also included prior parliamentary approval for the use of Maldivian territory by foreign nationals for military purposes.
Justifying these measures, President Mohamed Muizzu said: “These amendments are critical decisions made for the sake of the people in order to safeguard the country’s independence, sovereignty, development and stability. These decisions were made by the honourable members of the People’s Majlis (parliament) with patriotic fervour and in the national interest.”
Opposition Goes to Court
However, the Maldives opposition cried foul over the amendments. It moved the Supreme Court on the matter, and the court agreed to hear the case.
On 24 November, former member of parliament Ali Hussain petitioned the Supreme Court to strike down the anti-defection rules as unconstitutional. He argued that the amendments conflicted with constitutional provisions on fundamental rights and the functions and privileges of MPs.
The Maldives Democratic Party (MDP) and The Democrats joined the case as third parties. They said that the amendments eroded constitutional supremacy, deprived the people of their right to elect representatives, and violated basic democratic principles and legislative precedents.
According to The Diplomat, the anti-defection rules allow parties to enforce their “whip” with the threat of expulsion from the parliament seat. It was also pointed out that the measures were passed in a frightful hurry. On 20 November, President Muizzu’s People’s National Congress (PNC) used its 75-seat supermajority in the 93-member Majlis to insert the new provisions into the constitution. The government-sponsored legislation was submitted late on 19 November, taken up by parliament the following morning, and pushed through in less than nine hours. President Muizzu ratified the bill on the same day.
Local rights groups, led by anti-corruption NGO Transparency Maldives, expressed grave concern over “a marked absence of transparency in the unprecedented amendment process, inadequate procedural safeguard mechanisms, and the potential erosion of fundamental democratic principles.”
The rights groups condemned “the lack of proper review, informed debate and public consultation in the rushed legislative process.“ They further said: “The anti-defection provisions undermine the foundational democratic principle of representative choice and constrain the political independence of parliamentarians.”
To avoid losing their seats, lawmakers would be compelled to vote as instructed by their parties, regardless of personal objections or the interests of constituents, the rights groups’ joint statement explained. “Such centralisation of control would weaken internal party democracy and effectively subordinate the autonomy of elected representatives,” it added.
Rights activists also said that vesting the power to formulate national development policies solely with the President “undercuts the mandate of local councils to make development plans in close consultation with the public.”
India’s Experience with Anti-Crossover Law
India passed its Anti-Defection law in 1985. However, it has not proved to be effective, though Prime Minister Rajiv Gandhi, who authored it, had the noblest of intentions in introducing it. He wanted to prevent unprincipled and rampant crossovers for power and pelf, which were destroying the party system on which parliamentary democracy rested.
An assessment of the working of the law, published recently in Indian Express, said that the anti-defection law promoted the dictatorship of party leadership, especially its General Secretary. It restricted legislators’ freedom of speech by making MPs accountable to party leaders (or the party line) rather than to their constituents, thereby challenging the essence of representative democracy.
The Indian anti-defection law discriminated against independent members, who were elected by the people, by immediately disqualifying them if they joined a political party. In contrast, nominated members were given a six-month grace period, it was pointed out.
The Indian Express said that the law needed a set timeline for resolving defection cases. These cases often took years to be decided, thus nullifying the law. The Indian law also allowed large-group defections, fostering opportunistic mergers and “horse-trading,” destabilising the political system. It banned only individual defections. In other words, the law disallowed “retail” defections but allowed “wholesale” defections!
Additionally, it failed to address the root causes of political misbehaviour such as corruption and electoral malpractices. It did not deter parties from accepting defectors.
All these issues had prompted calls for revising the law to balance party discipline and political stability with individual rights and the imperatives of democracy.
The debate on the constitutional amendments took place amidst protests by supporters of the main opposition Maldivian Democratic Party (MDP) outside parliament. Proposals by the MDP to conduct a consultation process and hold public referendums on dismissing lawmakers were flatly rejected, the protesters said.
A Maldivian media outlet, Adhadhu, alleged that the sudden changes made by the government followed “rumours that some MPs of the ruling People’s National Congress (PNC) were planning to leave the party after the High Court was petitioned to quash part of the Anti-Defection Act that requires MPs to resign for floor crossing.”
Sri Lanka
Defections from one party to another have been common in Sri Lanka, but there is still no anti-defection law as such. This is because increasing a parliamentary party’s clout through defections has been an acceptable practice, with no significant stigma attached.
However, political parties that have lost members to the ruling party have gone to court to nullify the defections. But these efforts have not always borne fruit.
Unlike in the Maldives and India, in Sri Lanka, an MP who defects does not lose their seat, but they can be expelled from the party they had belonged to, and someone else from the party list could be appointed in their place. However, this can be challenged in court on the grounds that the expulsion was not carried out through due procedure and in a democratic manner. For instance, an inquiry might not have been held.
Sri Lankan courts, however, have overwhelmingly held expulsions to be invalid on various grounds. In 2023, Sunday Times editorially suggested enacting an Anti-Defection Law, saying: “The reality has been that defections are rarely based on conscience and largely engineered in today’s political context by crude monetary gains or political agendas. That must be stopped forthwith. But how? A Government always has an advantage in that it has plums to dangle to bait opposition MPs. The traffic in defections is usually one-way.”