Anti-defection law is not without flaws

The anti-defection law, that is supposed to stop lawmakers from taking money and changing political loyalties, seems to have been created in haste.

The law, that found its place in the statute in 1985, has certain clauses that can stifle free speech and thoughts. It also allows a sell-off by a group of law legislators but shows no leniency to a single lawmaker who doesn’t find the setting conducive to his style.

Soon, the Karnataka high court will have to decide whether a protest by a group of MLAs from a ruling party against the chief minister also becomes an act that can be handled under this law.
For the past 25 years, various situations were created by speakers and governors that ultimately required settling in a court of law.

Perhaps, the only redeeming feature in the anti-defection law is that a decision taken by the speaker under this law is open for judicial review. It could be argued that it’s because of certain misdemeanors by some speakers, who are political entities mostly owning allegiance to the ruling party, that the most important organ of the state, the legislature, has allowed the other crucial organ, the judiciary, to interfere in its functions.

Yet, it’s the political side of governance that often accuses the judiciary of ‘overreach’ and ‘activism’.

Be that as it may, two aspects of the Constitution which are dearer than any other — right to free speech and expression, and immunity from any legal proceedings for any act during the proceedings of the House—have also been given rough treatment under the law.

Firstly, a legislator has been reduced to a slave of the party instead of a servant of the electorate who chose him their representative. It’s a tragedy that he can’t vote as the electorate wants or talk as they would like him to, in the world’s biggest and vibrant democracy.

However, he can accept bribes for making a certain kind of speech or voting in a certain way. He is immune from legal action while participating in the proceedings of the House.

In 1993, six MPs from Jharkhand Mukti Morcha had taken bribes to vote in favour of the PV Narasimha Rao-led Congress government, but the Supreme Court had ruled that bribe-givers were the culprits.

Article 105 guarantees immunity to a lawmaker from legal action for acts in House. Ironically, they don’t have the same guarantee if they defy party whip inside the House.