Mentor’s comment-

• In the introduction briefly explain the anti-defection law.
• In the body, explain its  importance but how it has been misused. Mention about the working of Anti-Defection law, the issues concerning the same. Also, mention the importance of intra-party debates and dissent and the effect of anti-defection law on healthy democracy. Present relevant court judgments to substantiate your stand wherever required.
• Conclude that there is a need to define the procedure clearly and set a definite and reasonable time limit for each step of the process, ensuring transparency.

Introduction: Defection is “desertion by one member of the party of his loyalty towards his political party” or basically it means “When an elected representative joins another party without resigning his present party for benefits”. The institutional malaise is defection and party-hopping is stateneutral, party-neutral, and politics-neutral.

The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections” which may be due to reward of office or other similar considerations. The law applies to both Parliament and state assemblies. However, there are several issues in relation to the working of this law.

Body:
Former Congress deputy chief minister of Rajasthan, Sachin Pilot and his companions, who are revolting with the possible objective to bring down the government of the political party that had set them up as candidates in the last legislative election, stand automatically disqualified as such by virtue of Article 191(2), read with the Tenth
Schedule. In the recent past, there have been multiple instances of defections in Manipur, Karnataka etc.

Background:
● For a very long time, the Indian political system was impacted by political defections by members of the legislature. This situation brought about greater instability and chaos in the political system.
● Thus, in 1985, to curb the evil of political defections, the 52nd constitution amendment act on anti-defection was passed and the 10th Schedule was added in the Indian Constitution.
● 91st Constitution Amendment Act-2003 was enacted and was aimed at limiting the size of the Council of Ministers to debar defectors from holding public offices, and to strengthen the anti defection law.

Flaws of the current Anti-defection law
● Do not prevent Defection: The Anti-defection law has failed to curb “horse trading” and defection, leading to toppling of governments through machinations of corrupt legislators. Eg: The 17-MLA’s of the coalition government resigned in Karnataka, leading to change in government. The 17 MLA’s later contested from the party that formed a new government.
● Wholesale defection: The law prevents individual defections, but not wholesale defections. Eg: Congress government in Madhya Pradesh lost majority due to resignations of MLA’s.
● Against the true spirit of representative democracy: The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also enforces a restriction on legislators from voting in line with their conscience, judgement and interests of his electorate.
● Impedes legislative control on government: The anti-defection law impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership.
● Role of presiding officer of the house: The law lays down that legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
● Affects the debate and discussion: The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion.

Steps to be taken
● To be used for major decision making: Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. e.g. passage of the annual budget or no-confidence motions as recommended by Dinesh Goswami Committee.
● Non-partisan authority: Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
● Independent committee for disqualification: Justice Verma in Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority.
● Intra-party democracy: 170th Law Commission report underscored the importance of intra party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside.
● Limiting Speaker’s discretion: Recent Supreme Court Judgement ruled that Speaker must decide on disqualification within three months of receiving application. It cannot be the discretion of the Speaker to take no action.

Conclusion: There is a need to prevent unholy defections that lead to instability in the governance system of the nation. The current law is clearly flawed and has not effectively curbed deflection due to lure of power and money. There is a need for a more rationalised version of anti-defection laws which will help establish a truly representative democracy.