On Monday, the Supreme Court could refer a petition by Amar Singh and Jaya Prada to a larger bench asking if they can be disqualified under the anti-defection law for defying the Samajwadi Party’s whip in Parliament after already being expelled from the party. The petition filed by the two MPs provides an interesting context for discussing some major issues regarding the anti-defection law.

First, does the anti-defection law suppress healthy intra-party debate and dissent? Second, does it prevent representatives from voicing the concerns of their voters which may be opposed to the official party position? Third, who should be the adjudicating authority on cases of defection — the speaker of the House (usually chosen from the ruling party or coalition), or an external body such as the governor or the Election Commission? Last, specific to this case is the issue of whether an MP is bound by a party’s whip in Parliament even after the party has expelled him or her.

Anti-defection provisions were inserted into the Constitution in 1985 to combat the rising trend of political defections in the ’70s and ’80s. At present, if an elected member of a legislature (Central and state) voluntarily resigns from his political party, or does not obey the party whip, he can be disqualified under the anti-defection law. Different aspects of this law, including its constitutional validity, have come up for discussion before the courts over the years.

Supporters of the anti-defection law state that the curb on the freedom of speech and expression is necessary since the member is elected on the party’s manifesto and is bound to abide by the parties’ policies. While it is true that a legislator gets elected on a party ticket, it is not always possible to predict the party’s policy or reaction to different situations which may arise over a period of five years. In such cases, the liberty of the legislator to take a contrary view is currently at stake.

Various orders of disqualification have held that even the conduct of a legislator outside the legislature can be used as evidence to show that he has voluntarily resigned form his political party. Criticism of one’s political party in public, joining opposition rallies and demanding the dismissal of one’s own ruling party, are specific examples where such conduct has been used as evidence to disqualify candidates. This raises a wider question of whether a legislator should be allowed to criticise his political party outside the legislature, even if he obeys party directions and toes the party line inside it.

The petition filed by Amar Singh and Jaya Prada raises a specific question on a point of law that appears to be settled by the SC in 1996. The question, as reported, is this: can a member be disqualified from the legislature for not obeying his party whips on a particular issue even though the political party has already expelled him? According to the SC’s 1996 judgment (G. Vishwanathan vs Speaker, Tamil Nadu Legislative Assembly), once a person is expelled, he is treated as an “unattached” member in the legislature. However, he continues to be a member of his old political party for the purposes of the anti-defection law.

The present case of Amar Singh and Jaya Prada highlights this anachronistic situation where a member who has involuntarily ceased to be a member of a political party outside the legislature is treated as a member of the same political party to regulate his conduct inside the legislature. This is one of the aspects of the anti-defection law that needs a relook.

Concerns have also been raised on the role of the speaker in cases of disqualification. Various commentators have argued that the speaker’s position may not be completely neutral to enable it to decide on complaints regarding defection, as was recently seen in Karnataka.

A number of committees/commissions have suggested changes to the anti-defection law. MPs have also flagged various issues related to the anti-defection law, including through private member bills. Two recommendations that have been suggested are: disqualification be limited to cases only where the stability of the government is involved; and cases of disqualification should be decided by an authority other than the speaker. This may be the Election Commission or the president/governor.

The anti-defection law was originally enacted to prevent political corruption by creating a deterrent against frequent floor-crossing. Going by recent examples of how legislators have found new and innovative ways of finding loopholes in the existing law, there is clearly a need to review the law and amend it to address the numerous constitutional questions that have arisen on anti-defection in recent years.

The article is co-written by Anirudh Burman. The writers are with PRS Legislative Research, Delhi express@expressindia.com