Mentor’s Comment:

Define and explain about Anti-Defection Law. What was the aim behind incorporating it. It was enacted in 52^nd Amendment Act 1985 to maintain the political stability in Parliament.

However, it has been observed that in some instances it protects the defectors because of impartial decision making, lack of legal knowledge in presiding officer etc. and various other reasons.

Further, talk about how to stop this phenomena, how to restrict defection etc. Give argument with provision in favour of amending the law as being asked by the question itself. What are the provisions need amendment.

Give suggestions if any with valid proof in conclusion. Ensure that it should bring completeness.

Model Answer:

Defection was very common in 1980s and 1990s and hence the Anti-Defection law was enacted in 52^nd Amendment Act, 1985 so as to maintain the political stability, discourage and prevent political defections, strengthen the Indian parliamentary democracy by curbing unprincipled and unethical political defection which reduces political corruption and give constitutional recognition to political parties. It has been observed that in some instances it protects the defectors because:

1. The presiding officer do not act in an impartial manner as he also belongs to one or the other party and presiding officer lacks the legal knowledge and experience to give decisions on such cases thus give loopholes in Anti-defection laws to protect the defectors.
2. The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the defection has not been checked in the right earnest.
3. Further it is also observed that the lure of office of profit plays dominant part in the political horse trading resulting in spate of defections and counter defections.
4. Disqualification on ground of defection does not apply in case of merger of political parties. Where a party may merge with another or the two may form a new party. Where 2/3^rd members of the legislature party decide to merge with another party will not lose membership. In such condition it protects the 2/3rd.
5. Speakers have been taking advantage of the loophole of the law, that is, the absence of a time limit for the speaker to resolve the complaints filed by the leaders of the original parties. In this Speaker delayed the defection process or ruling party change the speaker which takes too much time to again reconsidering the issue of defection.

Thus, there is need to amend the Members’ disqualification procedure and rules. There is a need for:

• Proper procedure for members’ disqualification.
• Judicial review of speaker’s decision.
• Time limit for defection.
• Transfer of the disqualification matters from the speaker’s office to the Election Commission.

Now there is urgent need to make the anti-defection law foolproof by putting role of the speaker’s office must be made fully accountable and totally transparent. Any arbitrary powers of the speaker will only benefit his/her political masters and weaken democratic processes. It is high time to find a permanent solution to this problem. This can be done in two ways.

1. The first solution is by defining the entire procedure and setting definite and reasonable time limits for each step of the process, ensuring transparency. It is worthwhile to recollect that it was the speaker’s office answer, secured by an RTI application.
2. The second solution is to transfer the disqualification matters from the speaker’s office to the Election Commission, again with a defined procedure that has clear time bound procedures and total transparency. Unless a defined procedure is put in place, the constitutional arrangements of this country will continue to be humiliated by persons action above the law while holding public offices.