The law that defines and governs loyalty in India’s electoral politics distinguishes between “defection” and “merger”. The 10th Schedule prohibits the first, and a legislator who wishes to change party loyalty must forsake his seat in the legislature.
On the other hand, the second is permitted by the same law, provided those who want to merge with another party command the support of two-thirds of the elected members in their original party. However, if in letter the law sees these two overtures as different, in spirit, they are virtually the same—both amount to legislators betraying their original parties on whose tickets they won their seats in legislative bodies.
Ideally, the letter of the law and the spirit of the law should be congruent. When this is not so, even though some affronts may not have legal consequences, they still cannot avoid evoking a sense of injustice amongst many. The recent merger of five of six Janata Dal (United) MLAs with the ruling Bharatiya Janata Party in Manipur demonstrates this. There was nothing constitutionally wrong with this, but the move was widely met with public disdain and ridicule.
Similarly, two other north-eastern states, Arunachal Pradesh and Meghalaya, witnessed near-identical outrages earlier. In Arunachal Pradesh, the JD(U) had won seven seats in the April 2019 State Assembly elections and emerged as the second-largest party behind the ruling BJP’s 41.
However, on December 25, 2020, six of them decided to merge with the BJP. The single MLA who stayed behind also apparently changed his mind and merged with the BJP on August 24, 2022. In Meghalaya, 12 of the original 21 Congress MLAs who returned in the 2018 election decided to merge with the All-India Trinamool Congress in December 2021.
The point is that party-hopping by MLAs has become a normalised abnormality in these states. Besides being able to dodge the Anti-Defection Law with dexterity, they now seemingly do not even worry about any severe or critical public scrutiny, which can have a consequence on their electoral fortunes. The latter now has apparently resigned to this reality of political infidelity and, despite the knowledge that it is wrong, accepted it as the new normal.
Indeed, politics in much of the region has long ceased to be ideology-determined and has instead come to be transactional, in which the primary goal of legislators is to seek an alliance with any party in power.
But the truth also is that although particular legislation may be silent on certain matters of justice, there are unwritten and intuitive senses of rectitude pertaining to these matters that all human societies hold and value. This civilisational quality seems to be on the wane in the political arenas of the region.
The complexity of the idea of jurisprudence coming out of dialectics between these written and unwritten ideas of justice is what is being ruined beyond recognition by these elected leaders, and few seem prepared—much less eager—to have the damage repaired.
A comparison with the case of the Armed Forces Special Powers Act (AFSPA), a law the northeast is all too familiar with, should bring home the point. AFSPA is a law legislated and given legal sanctity by Parliament—therefore, acting as per its provisions cannot amount to any infringement of law.
Yet, a greater section of people in the region is vehemently opposed to it. This is because in AFSPA, too, there is the same dichotomy between the letter and the spirit of the law. The spirit is to protect the innocent, but in reality, the letter itself becomes an instrument for violating this very spirit, especially by the legal impunity clause provided to the armed forces operating under it.
Few have illustrated this dichotomy more succinctly than Devdutt Pattanaik, author of several books on Indian mythology. As he points out, the great Hindu epics Ramayana and Mahabharata are rich with analogies of this. In the age of innocence (Satya Yug), the letter and the spirit of the law are not allowed to diverge. Belonging to this age, Lord Ram, for instance, keeps his father’s promise made to his stepmother to exile himself for 14 years in the jungle, although there is no law that compels him to do so.
In the age of experience (Kali Yug), the primacy of the idea of justice begins to lean towards the letter of the law. Hence, a man like Duryodhana of Mahabharata never goes against the letter of any law but has no scruples in using this same letter to violate its spirit. The famous dice game in which he wins Draupadi from the Pandava brothers is most illustrative.
By the law of the time, the win at the gambling table makes the queen his property, with the right to strip and humiliate her in public. He seeks consensus from the gathered nobility on whether he was wrong in his interpretation, and nobody could think of a legal point to challenge his contention, though horrified by the idea. He then goes ahead to have the queen disrobed.
At such times, the need for intervention by a higher legal order comes to be felt. In this case, it is the divine intervention of Lord Krishna who decides to break the letter of this law to rescue its spirit. Those familiar with the Mahabharata would also know that throughout the epic, Lord Krishna, on several occasions, resorts to saving the spirit of laws even if it means breaking their letters.
Pattanaik also brings up other analogies to highlight more nuances of this interplay between the letter and the spirit of the law. Hence, Yudhisthir, someone who aspires to be Ram, tries to keep the law’s letter and spirit intact. His direct opposite is Ravana, for whom neither the letter nor the spirit of the law mattered. Instead, his whims became the law.
This is what a true despot is. And ironically, those who today swear by Lord Ram and his virtues have no trouble encouraging or taking advantage of this increasing dichotomy between the letter and the spirit of the law.
Editor of Imphal Review of Arts and Politics