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Anti-Defection Law vis-à-vis Freedom of Speech in Parliament

Introduction

The Tenth Schedule of the Indian Constitution which is popularly also known as The Anti-Defection Law was inserted into the Constitution via the 52nd Amendment. It aims to bring political stability to the country by disqualifying the members of Parliament for leaving one party to join the other. It came as a response to mass party hopping due to which multiple governments were toppled after the general elections of 1967. As the Schedule stands today, a member can be disqualified from the political party if:

  • “He voluntarily gives up his membership in a such political party.
  • If he ‘votes or abstains from voting in the House violating the whip issued by the political party to which he belongs “without obtaining prior permission of such political party” and such voting or abstention has not been accepted by the political party within 15 days from the date of such voting or abstention.”

The Supreme Court of India has held that voluntarily giving up the membership does not require a formal resignation. In Ravi S Naik vs Union of India,  the court held that, “: “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.” Such inference can be drawn from the member’s speech or conduct where he deliberately undermines the position of his party. Following this principle, the Supreme Court in 2007 upheld the disqualification of 13 MLAs belonging to the Bahujan Samaj Party who designed a meeting with the Governor along with the General Secretary of the party in opposition and also requested the Leader of Opposition to form the government despite the fact the Chief Minister had already advised the Governor to dissolve the Assembly.

The conflict between Freedom of Speech and Anti- Defection Law

The freedom of speech that parliamentarians enjoy is far greater than what an individual citizen may enjoy under Article 19(1)(a). This freedom of speech which is near absolute is not a mere privilege but a necessity. The people who are responsible for framing the laws of the country must have the freedom to present their arguments. In case, they feel that a certain policy is going against the goodwill of the nation, they must have the freedom to express their dissent as an expression of dissent is an inherent part of freedom of speech.

However, with the introduction of the Anti-defection law, this freedom has significantly been curbed. Para 2(b) of the 10th schedule uses the expression “contrary to any direction issued by the political party.” Firstly, this expression confers a completely separate status on a political party. The Constitution of India never mentioned the term ‘political parties for the first thirty-five years of its inception. However, with the introduction of the 10th Schedule, it has been made clear that a parliamentarian owes his loyalty primarily to his political party and not to the welfare of the countries.

Secondly, the term ‘any direction’ is extremely wide. Post the introduction of the 10th Schedule, political parties issue whips in most cases, and any aberration from such whip will inevitably lead to defection. In contentious policies which require intense debate and deliberations, issuing a whip by party reduces members of the party to a mere number and not rational being capable of presenting arguments and expressing dissent. In such a scenario, where the party is well aware that there will no opposition from the members of its party, howsoever ill-framed the policy is, the only prerogative remaining is to convince the opposition in the house. Even this formality can be done away with if the party enjoys a majority in the house.

In 2012, when the Parliament was debating on whether or not Foreign Direct Investment should be introduced in retail trade, independent reports suggest that the government and opposing party were keen on convincing mere the leaders of the parties and not members of their respective parties. The Parliament is reduced to a two-people debate forum. The scenario worsens when a party enjoys an absolute majority.

The effect of the absolute majority coupled with the Anti-Defection law can be seen 17th Lok Sabha Sessions. The three bills were introduced in the Lok Sabha on 14th September 2020 and while one of them was passed just the next day, two others were passed on 17th September. Presently, around 250 members of Parliament in Lok Sabha identify themselves as farmers. These are the representatives of people from all across India. However, when the infamous farm bills were being discussed in Parliament, they could not support or oppose it owing to their respective party’s whips.

Article 105 states, “there shall be freedom of speech in Parliament.” However, one cannot be expected to freely exercise this freedom when he is constantly under the threat of disqualification for disobeying the party whip. The Anti-defection law has allowed the political parties to impose their views on the MPs who were supposed to represent the people and their views in Parliament. This is not just a subversion of a parliamentarian’s freedom of speech but also a grave threat to democracy in India. Edmund Burke in his speech to Electors of Bristol said, “Your representative owes you, not his industry only, but his judgment.” Burke made it clear as early as 1774 that a representative ought to be absolutely free from any fear and favor to present his well-reasoned arguments. However, it is not possible when he has a sword of Damocles hanging over his head which may any time collapse and he may lose his seat in the Parliament.

Conclusion

Anti-defection law has had a rather ironic effect since its inception. On one hand, where it has effectively curbed freedom of speech in the Parliament, it has failed miserably to stop defections. MPs have not only been involved in shameful horse trading even after the introduction of the Anti-Defection law, in 1998, during the no-confidence vote, 21 members defied the party whips. No-confidence motion is perhaps the only situation where a strict party whip could be justified since it determines the stability of the party in the parliament. However, even there, the Anti-defection law has failed to produce any virtuous results. The Parliament is sovereign as far as its regulation or conduct of business is required. On this ground, the court has often refused to interfere with disqualification matters. However, it’s high time that the Anti-Defection law has been misused by the political parties. In absence of any such law, MPs would be free to vote according to their conscience. Recently, 55 MPs from former Prime Minister of Britain, Boris Johnson’s party voted against the party’s proposal for stricter Covid-19 norms. Such freedom is much required in India. Although Anti-defection law could not be completely done away with, its scope should be narrowed down to voting against the party’s directions during no-confidence motions and voluntary resignations. The MPs should be free to express their thought as far as policy matters and bills are concerned.

Recently, in Rajasthan when Sachin Pilot rebelled against his party and was facing the risk of being disqualified for defection, Harish Salve representing him argued, “Defection is when you leave Party A and joint Party B. Protesting against the party while staying within the party cannot be regarded as giving up party membership. Intra-party dissent, however shrill it may be, until the moment it goes to the extent of supporting another party, cannot be a ground to even start disqualification proceedings under the Tenth schedule of the Constitution.” This argument summarises the exact objective that the Anti-defection law was originally supposed to achieve. Debates, discussions, and dissent are the signs of a healthy democracy. If it is prohibited in the Parliament itself, it is quite impossible to imagine how a democracy with the world’s largest population is supposed to function.

Author(s) Name: Shiwangi Singh (Symbiosis International University)