The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion. In light of this statement critically analyse the issues with anti-defection law.

Recent Context: The demand for the removal of an MLA and two MPs from their respective legislative bodies, all of whom are from West Bengal, has re-ignited the political war between the Bharatiya Janata Party and the Trinamool Congress, re-focusing attention on the country's anti-defection laws.

Introduction:

• Political defections by members of the Indian legislature have had an impact on the Indian political system. The political system became more unstable and chaotic as a result of this predicament.
• In 1985, the 52nd constitution amendment act on Anti-Defection Law was passed, and the 10th Schedule was inserted to the Indian Constitution to combat the evil of political defections.
• Recent examples of defection in the Indian polity, however, suggest that the law has to be revisited in order to close loopholes and strike a balance between legislators' rights and the interests of parliamentary stability.

Anti-Defection Law: Anti Defection Laws basically provide for the grounds under which a Member Legislative Assembly or a Member Parliament can lose his privileges as an Elected Representative of a party and hence can be disqualified from the party.

Ground for Disqualification:

• If an elected official willingly withdraws from a political party.
• If he votes or abstains from voting in the House against his political party's instructions.
• If any independently elected member joins a political party.
• If any nominated member joins a political party after the six-month period, the nomination will be revoked.
• The Speaker or the Chairman of the House is consulted on disqualification matters based on defection, and his or her judgement is final.
• All proceedings relating to disqualification under this Schedule are deemed to constitute proceedings before Parliament or, as the case may be, the Legislature of a state.

Exception: When two-thirds of a political party's legislators vote to merge with another, neither the members who join the new party nor those who stay with the old party will be disqualified.

• Any person elected as chairman or speaker has the option of resigning from his party and rejoining it if he relinquishes his position.
• Previously, the legislation permitted the division of parties, but this is now prohibited.

Issues related to Anti-Defection Law:

• Defection is the subversion of election mandates by legislators who are elected on one party's ticket but then find it more convenient to switch to another due to the temptation of cabinet slots or financial benefits.
• In the 1960s, the infamous "Aaya Ram, Gaya Ram" slogan was coined in response to a steady stream of lawmaker defections. The defection causes insecurity in the government and has a negative impact on the administration.
• It also affects the political stability of the government. If a government is formed with the coalition party, then other party members hold the government as they want as a result it affects functioning of the Governance.
• Defection encourages legislators for horse-trading, which is manifestly contrary to the mandate of a democratic system.
• Unfair to constituency or Voter: An MLA or MP who wins a ticket of a party who was in majority and if he defected from that party, it is a violation of people’s trust.

Challenges in the Functioning of Parliament:

• The anti-defection law aims to ensure that parliamentarians do not switch sides, resulting in a stable administration.
• However, legislators are prohibited from voting in accordance with their conscience, judgement, and the interests of their constituents under this law.
• The anti-defection law obstructs the legislature's oversight duty over the government by assuring that members vote based on party leadership decisions.
• In other words, if parliamentarians are unable to vote on legislation independently, they will be unable to serve as an effective check on the administration.
• In effect, it weakens the separation of powers between the Executive and the Legislature, concentrating power in the hands of the executives.
• Legislators can be disqualified for defection by the Presiding Officer of a legislature based on a petition from any other member of the House.
• However, there are other cases in which presiding officials serve the entrenched interests of a ruling political party or government.
• Furthermore, the law makes no provision for the Presiding Officer to make a decision on a disqualification plea within a specific time frame.

Way Forward:

• Rational use of the anti-defection Law: According to some analysts, the law should only apply to votes that decide the government's stability. For example, no-confidence motions or the passing of the yearly budget.
• Promoting intra-party democracy: The 170th Law Commission report emphasized the importance of intra-party democracy, noting that a political party cannot be a dictatorship inside while working democratically outside.
• As a result, the parties should pay attention to the members' viewpoints and hold talks about them. This would allow the freedom of speech and expression to its members and foster inner-party democracy.

Committee Related to Anti-Defection Law:

• The Dinesh Goswami Committee's recommendations include limiting disqualification to circumstances when a member has willingly resigned from his political party.
• Members voting against party directives or refraining from voting.
• 170th Report of the Law Commission: Remove the exemption for splits and mergers.
• Under the 10th Schedule, the pre-poll electoral fronts are treated as a single party.
• Whips should only be used in crucial situations or votes.
• Election Commission: Make the President/Governor the disqualification decision-maker, subject to binding advice from the Election Commission on the lines of disqualifications based on the provisions of the Representation of Peoples Act concerning the Office of Profit.

Judicial Pronouncement:

Zachilhu vs. Kihota Hollohon (1992)

• According to Justice Verma in the Hollohan decision, the Speaker's tenure is contingent on the continued support of the House majority, and hence he does not meet the criterion of such an independent adjudicatory authority.
• Furthermore, his selection as the only arbitrator in the case breaches a fundamental characteristic of the basic feature.
• As a result, an impartial body to deal with incidents of defection is required.
• The Supreme Court clarified in its decision that the 10th Schedule is constitutionally valid. It does not restrict freedom of speech or expression, nor does it undermine elected members' democratic rights.
• The court also affirmed the Speaker's broad power in considering cases of MLA disqualification.
• It did, however, hold that the Presiding Officer's disqualification determinations are subject to judicial review.

Conclusion:

• Though political instability caused by frequent and unholy changes of allegiance on the part of our country's legislators has been greatly reduced as a result of anti-defection legislation, there is still a need for a more rationalised version of anti-defection legislation that will aid in the establishment of a truly representative democracy.