By Dr. Kavita Garg
Freedom of speech and expression has always been the point of contention in Indian society. This unlimited freedom has been filtering through the past several months, be it a protest against the hanging of Afzal Guru, cross voting in the Rajya Sabha election, or an objection to censor films in a so-called rigid secular society.
It is essential to remember that the role of law in a democratic country is not restricted to anyone’s freedom at the cost of national interest. It is true that freedom of speech and expression is a must in democracy; so also it is necessary to place restrictions on this freedom for its maintenance.
Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the public on grounds such as security of the State, friendly relations with foreign States, public order, decency or morality, defamation, incitement to offence, sovereignty and integrity of India and contempt of court.
The institution of elected legislatures is core to democracy. The Tenth Schedule to the Indian Constitution, known as the Anti-Defection Law, was inserted in the Indian Constitution by the 52nd Amendment in 1985. This legislation contains eight paragraphs.
Anti-defection law was introduced into the country in order to check the rampant practice of parliamentarians voting for another party’s candidate instead of their party’s official candidate. Indirectly, the objectives of these provisions are to check bribery and corruption on the floor of the House.
According to paragraph 2 of the Tenth Schedule, an elected or nominated Member of Parliament or State Legislature who has been elected as a candidate set up by a political party would be disqualified on the ground of defection if he disobeys the directive of the party leadership on a vote.
The Members of Lok Sabha (Disqualification on Grounds of Defection) Rules, 1985 were framed by the Speaker of the House and came into effect on 18th March 1986. Under the Rules, the leader of the party is required to inform the Speaker within thirty days of such voting whether such voting has or has not been condoned by the political party.
Article 102(2) provides for disqualification of a person for being a member of either House of Parliament if he is disqualified under the Tenth Schedule, and his seat becomes vacant. Article 191(2) contains the corresponding provision for State Legislatures.
The anti-defection law raises a number of questions on the right of free speech of legislators. This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 in Kihoto Hollohan v. Zachillhu and others. The Court held that the anti-defection law does not violate rights or freedoms or the basic structure of parliamentary democracy.
Presiding Officer and Judicial Review
The decision relating to the disqualification of a Member of Parliament or legislature is determined by the Chairman or Speaker of the House. The Chairman or Speaker is empowered to make rules for giving effect to the provisions of the Tenth Schedule.
The Supreme Court has held that the decision is not immune from judicial review. There may not be judicial intervention until the presiding officer gives his order; however, the final decision is subject to appeal in the High Court and Supreme Court.
The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House.
MPs and MLAs enjoy freedom of speech on the floor of the House and cannot be prosecuted for having said anything in the House. The article discusses the JMM bribery case (P. V. Narasimha Rao v. State, (1998) 8 SCC 1) and the protection under Article 105(2).
In recent Rajya Sabha elections to fill 57 seats, cross voting among members of political parties again became a matter of controversy. The author argues that there should be a provision under which the Speaker or Chairman could act suo motu against a cross voter.
The article concludes that increasing political dishonesty and political lust for profit have undermined the object of anti-defection law. Legislators are accountable not only to their parties but also to the people.