Anti-Defection Law: A Death Knell for Parliamentary Dissent?

Anti-Defection Law: A Death Knell for Parliamentary Dissent?


Volume 5 Issue 1 ()

Paragraph 2(1)(b) of Schedule X of the Constitution of India seeks to ad- dress defection by preventing parliamentarians from defying the direction of the party whip during times of voting. The wide phraseology of the provi- sion has led to misuse of this power, which has resulted in a chilling effect on the freedom of speech of the members of the house. The provision con- fuses dissent for defection and thereby, stifles a vital cog of parliamentary democracy. Further, by regulating voting, there is a flagrant curtailment of parliamentary debate, the implication of which has been meagre discussion before the passing of crucial bills. There is no logical link between this pro- vision and the aim of improving party stability. Further, it has not contrib- uted to checking the concomitant evil of corruption in Parliament. Despite the issue being highlighted by the Supreme Court in Kihoto Hollohan v. Zachillhu,1 the solution proposed by it has been largely ineffective and done little to neutralise the harm arising from this provision. The purposive in- terpretation given to this provision thus mandates a relook to further water down its unintended scope. This paper argues that the appropriate solution is not the repeal of Paragraph 2(1)(b), but a constitutional amendment to restrict the instances where members can be disqualified for defying whips. Such an amendment would not only address the stated harms, but also bring India’s defection laws in line with American and English parliamen- tary principles.

Cite as: Kartik Khanna & Dhvani Shah, Anti-Defection Law: A Death Knell for Parliamentary Dissent?, 5 NUJS L. Rev. 103 (2012)

Disclaimer: All articles of Issue 5 (1) of the NUJS Law Review will be released online once the print copy is out