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Tenth schedule of the Indian Constitution refers to Anti-Defection Law. This deals with certain grounds on which a member of a house can be disqualified. Accordingly, the member of the house will be disqualified if he votes or abstains from voting in contrary to any direction issued by the political party to which he belongs. For example, if a parliamentarian belongs to a particular political party which has a stand on a proposal or policy, the parliamentarian cannot have his own viewpoint on that proposal as he is obliged to agree with the party, irrespective of his knowledge, education, in order to protect his job. So, this law prohibits elected members to vote as per their own ethics, morals and choice.

In India, members of the House represent the interests of their respective constituencies. So, to regard the interests of all the regions, it is necessary to hear the voice of each member. Expression of views and discussions are crucial elements in the formulation of strong laws. These elements help legislators to keep up their own perspective on an issue. Their perspective is a blend of different preferences, regional situations. An issue or policy must be debated properly in the legislature. Their voice is for the social utility but this law of Anti – Defection is curbing that power of MPs or MLAs to participate in in – depth analysis of an issue.

The basic essence of Parliamentary form of government is being faded by the Anti-Defection Law. In parliamentary democracy, executive is held answerable to the legislature and the legislature acts like a watchdog on the actions of the executive. But this law is weakening the system of check and balance and is breaking the connection between the elected legislator and his electors or voters. This law has resulted in a situation where political party has an upper edge in decision making than the parliament and court. So, it will not be wrong to say that Anti-Defection law has laid the parliamentary confidence in danger only for the survival experiment of government.

Article- 105 of the Indian Constitution provides the parliamentarians with legal immunity. According to Article – 105(2), no member of parliament will be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament. So, there is full freedom given to the parliamentarians to vote that even the court of law cannot interfere in the process of voting during session in the Parliament. Individual citizens are guaranteed freedom of speech under Article 19 of the Indian Constitution, but it is restricted with certain reasonable restrictions, but the freedom of speech guaranteed by the Indian constitution to the elected members of legislative houses are much wider. The Anti-defection law is odd as it results in a strange situation where elected members are imposed with more restrictions in the exercise of their right.

So, here a question arises that on one hand members are immune from any proceedings by constitutional authority viz court and on another hand how can they be held accountable on the decision to vote on any subject to the political party which is not a constitutional authority? Hence, the anti-defection law is hampering the freedom of right to vote by making it compulsory for all the members to vote strictly on party lines, and in complete obedience to party whips. In any case, if party members think that the proposed law is irrational still, they can’t raise their voice against the bill.

Discussion in the legislature on a policy helps in raising the criticism against it which further leads to a chance for the government to defend it with an alternative solution. These discussions and debates have no value till this Anti-Defection law exists as votes cannot be altered on the basis of these debates and discussions. If in the legislature, government is in the majority and a whip is issued by the ruling party, then there will be no dissent by any member of the party in the majority. For example, if a political party has seats more than 50% in the house then no law proposed by the executive can fail in the house. Therefore, the nature of the government will change from democratic to autocratic as political party in majority will use this anti-defection law to constitute more than 50% votes. Therefore, this will clearly pass the bill and will have a bad impact on the accountability of the government.

So, there is a dire need to reform the law so that freedom of speech can be equivalent to the freedom of speech for views one doesn’t like. By reform, individuality of each legislator will be protected and parliament & legislatures will be able to reflect important keys of democracy which include healthy debate and discussion.

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Category Constitutional Law, Other Articles by - Vartika Mittal