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 in against the hanging of bloody murderer Afzal Guru or be it a cross voting in the Rajya Sabha election or be it a objection to censor films in so called rigid secular society. It is essential to remember that the role of law in democratic country is not restricted to any one‘s freedom at the cost of national interest.

Yes it is true that freedom of speech and expression is must in democracy, so also it is necessary to place restrictions on this freedom for the maintenance. Accordingly, under Art 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 interest of public on some grounds like security of the state, friendly relations with foreign states, public order, decency or morality,defamation, incitement of offence, sovereignty and integrity of India and contempt of court.

The institution of elected legislatures is core to democracy. The tenth Schedule to the IndianConstitution known as ‘Anti defection Law’ was inserted in the Indian Constitution by 52nd amendment in 1985. This legislation contains eight paragraphs. The second paragraph laid down the process by which legislators may be disqualified on the ground of defection. The sixth and seven schedules elaborate the provisions for the filing of the petition and jurisdiction of the authority to hear the disputes under this law. Anti defection law was introduced into the country in order to check the rampant practice of  rliamentarians to  vote for other 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 2nd paragraph of the tenth schedule, an elected or nominated Member of Parliament or the State Legislature who has been elected as 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. That is they may not vote on any issue in contravention to the party’s whip. The main intent of the law was to deter ‘the evil of political defection’ by legislators motivated by lure of office or other similar consideration. The question as regard to the disqualification of Member of Parliament or legislature will be determined by chairman or speaker of the house and his decision is final. The chairman or the speaker of a house has been empowered to make rules for giving effect to the provisions of the tenth schedule.

The Members of lok sabha(Disqualification on grounds of defection) rules 1985 were framed by the speaker of the house which came into effect on 18th March 1986. Under the rules, the leader of the party is required to inform the speaker within 30 days of such voting whether such voting has or has not been condoned by such political party. And a petition may be made in writing to the speaker by any other member. Where the speaker or chairman declares that a member has become subject to disqualification under the tenth schedule, he shall cease to be member of the house from the date of the order. Similar rules are framed in all state under the Tenth Schedule.

Art 102(2): A person shall be disqualified for being a member of either house of parliament if he is so disqualified under the Tenth Schedule of the Constitution. And his seat shall become vacant. Art 191(2): A person shall be disqualified for being a member of the legislative assembly or legislative council of state if he is disqualified under the tenth schedule. And his seat shall become vacant. The anti defection law raises a number of question 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 Vs Zachilhu and others. The court said that “the anti defection law seeks to recognize the practical need to place theproperties of political and personal conduct….above certain theoretical assumptions.” It held that the law does not violate any rights or freedom, or the basis structure of parliamentary democracy. In Lok Sabha,the majority of the time is spent discussing non-legislative business. The actual cost of dysfunctional parliament is few hundred crore rupees. Just imagine the situation of the House if all 545 members of lok sabha or 245 members of Rajya Sabha raise their individual opinion over the business of the House.

In Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress, Sep 10, 2008, the speaker held that a person getting elected as a candidate of a political party also gets elected because of the programs of the party. If the person leaves the party he should go back to the electorate.

Various judgments and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party. In G. Vishwanathan Vs. The Hon’ble Speaker Tamil Nadu, 1996 AIR 1060 and Ravi S Nai8k V. UOI and others (1994)2 SCC 641, Supreme Court held that even in the absence of formal resignation from membership an inference can be drawn from the conduct of a member. Can the decision of the presiding off icer of the House be challenged in the courts? The law states that the decision is final and not subject to judicial review. The

Supreme Court struck down this condition. It held that there may not any judicial intervention until the order of the presiding officer gives his order. However the final decision is subject to appeal in the High Court and Supreme Court. But the Goswami committee, the Election Commission and Venkatachaliah commission to review the Constitution (2002) have recommended that the decision should be made by the president or the governor of the state on the advice of the election commission.

Should there be any additional penalty on defectors?The Venkatachaliah commission recommendedthat defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the house. Salary of legislatures: Our MLAs MPs are paid quite well for those services that they are expected to do. The other facilities include medical facilities, residence allowances, reimbursement of electricity and phone bills and travelling facilities. The salary of an MLA is decided by their respective state legislature under Art 164 of the Indian Constitution. Thus it varies from state to state. They are very quick in passing bills for their high salaries without disturbance in house. After 2011 increment their salary is 95,000 per month in Karnataka state.

Immunity to legislators: MPs and MLAs enjoy the freedom of speech on the floor of the house. And they cannot be prosecuted for having said anything in the house. Immediately after Anti Defection law, in 1998, a surprising judgment of Supreme Court had generated attention in JMM Bribery Case (P. V. Narasimha V. Sate, (1998) 8 SCC 1). In this case the Constitution Bench by a majority of three judges to two, comprising Justice Barucha and Rajendra Babu held that the bribe takers who voted on the no-confidence motion are entitled to immunity from the criminal prosecution for the offences of bribery and criminal conspiracy, conferred on them by Article 105(2) of the Constitution. Article 105(2) lays down that no member of parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament or any committee thereof. But the acts involving conspiracy and acceptance of bribery were wholly done outside the parliament in their individual capacity. Likewise MLAs are exempted from liability in respect of anything said or any vote given in the legislature under Art 194(2) of the Indian Constitution.

Anti Defection law in Other Countries: In US a member of the House has the freedom to vote for any policy and bill without the fear of disqualification. In fact there is the internal US party structure that provides for sanction to be imposed on legislatures who do not vote according to party’s directions. British parliament also does not provide for a separate anti defection law, but all matters of defection are governed by internal party rules. But anti defection laws are prevalent in other countries like Bangladesh, Kenya, and South Africa.

On June 15, 2016, Congress expelled six Uttar Pradesh legislators for cross voting in Rajya Sabha Polls. On June 13, 2016, JD(S) issued show cause notice to rebel MLAs in Karnataka. But what about the validity of the vote they casted against the party’s direction? Legislators are not only accountable to the party but also to the people. Any member of the house may file the petition before speaker or chairman under anti defection rules against the cross voter, but all are afraid of filing for their political career. I think there should be a provision in anti defection laws under which speaker or chairman suo motu could file the petition.But because of increasing political dishonesty and political lust or profit, the aim of this law remains a myth. Consider the case of parliamentarians who aid the toppling of their own government and then jump in other government to become ministers. Legislators should remember one good old saying “united we stand divided we fall.

It is true that freedom of speech and expression is must in democracy,so also it is necessary to place restrictions on this freedom for the maintenance

Like other democracy, political parties represent the different sections among Indian society and regions and their core values play a major role in the politics of India. Both the executive branch and legislative branch of the government are run by the representative of the political parties who have been elected through the elections. Through the electoral process, the people of India choose which political party

should run the government. Many of the biggest scandals have involved very high level government officials such as 2G scam, Commonwealth games scam, Adarsh housing society scam, coal scam and cash for vote scam. The unforgettable cash for votes scandal was Indian political scandal in which United Progressive Alliance, the majority holding parliamentary party of India led by Sonia Gandhi, allegedly bribed BJP MPs in order to survive a confidence vote on 22 July 2008. I think in India, politics is a fast growing and money minting profession. And on the top of it they have protective laws like Art 105(2) of Indian Constitution and Supreme judgment in P V Narsimha Rao case. If they can buy or sell the votes for money then no doubt they can also sell the country to remain in power or for money. Everybody knows the reality behind the election of law makers but then who make the laws against them. In recent elections to Rajya Sabha to fill 57 seats became notorious for alleged cross voting among the members of political parties. This is not the first time that money power has playe d a critical role in helping moneybags gets elected to upper house.

-Dr. Kavita Garg