Do you agree with the argument that the Anti-defection law violates the right to free speech? Highlight the key issues related to law and suggest reforms.|
The Anti-defection law(10th schedule) was added through 52nd amendment of the Constitution which provides for disqualification on ground of defection. Soon after the passage, the law was challenged on the grounds that it violates the right to free speech of legislators.
However, Apex court in Kihoto Hollohon vs Zachillhu(1992) upheld the constitutional validity and decided that the law does not violate rights of free speech of the legislatures. Along with that SC made some observations regarding section 2(1)(b) of 10th schedule, which provides for disqualification of a member in case she/he votes or abstains from voting contrary to whip directions. As per the judgment, there is need to limit disqualifications(in case of acting contrary to whip directions) only to the no-confidence votes and to the matters which are an integral part of party’s electoral program so that it does not violate the freedom of speech of members.
Another major issue is that the decisions are taken by Speaker/ Chairman which is accused to be biased sometimes. Here the recommendations of Election Commission should be the due consideration. As per EC recommendations, decisions under the Tenth Schedule should be taken by the President/ Governor on the advice of the Election Commission, this will help in preserving the integrity of the office of speaker.
Also, whip directions should be limited to the cases of government stability. This will be helpful in the constructive criticism on crucial policy matters. Along with that the case of “voluntarily giving up membership” is too vague and therefore it should be revised so that it can be interpreted in an objective manner.
If the reforms are properly implemented, the law will not only ensure freedom of speech, but it will also help in ensuring government stability.
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