October 15, 2020
"Dissent is the safety valve of democracy. If dissent is not allowed,
then the pressure cooker may burst”- Justice D.Y. Chandrachud
Introduction
The Rajasthan High Court in its recent order dated
24.07.2020, in the case of Prithvi Raj
Meenav. The Hon’ble Speaker,
Rajasthan Legislative Assembly,[1] laid down some pertinent questions of
law which may require further adjudication by the Hon’ble Supreme Court. These
questions include:
i)Whether, in the facts and circumstances of the present
case, Paragraph 2(1)(a) of the Tenth
Schedule of the Constitution, is violative, in particular to the basic
structure of the Constitution of India including the fundamental right of
freedom of expression guaranteed by Article 19(1)(a) of the Constitution of
India and thus void?
ii) Whether the expression of dissatisfaction or
disillusionment and the strongly worded opinions against the party leadership can be a conduct
falling within the scope of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution.
In the case
of Subramaniam Swamyv. Union of India,[2] the Supreme Court has already observed
that voice of dissent or disagreement has to be respected and regarded and not
to be scuttled as unpalatable criticism. Emphasis has been laid on the fact
that dissonant and discordant expressions are to be treated as view-points with
objectivity, and such expression of views and ideas being necessary for growth
of democracy are to be zealously protected. Thus, courts every now and then have
laid great emphasis on the importance of dissent within a democracy.Similarly,
Articles 105 and 194 of the Constitution protects the freedom of the speech of
members in
the Parliament and State legislatures respectively. The parliamentary privilege
given to the members is so vast to the extent that in the case of P.V. Narsimha Rao v. State[3] it was categorically held that no
civil or criminal proceedings can take place against a member for anything said
in theHouse of Parliament or for a vote casted by them nor they are
answerable to a court of law.
Freedom of Speech and
Expression-Outside the House
However, a
dispute may arise when a legislative member chooses to ignore the commands of his
or her party leadership and tries to be the lone wolf. Now, the mandate under
Para 2 of the 10th Schedule of the Constitution is too wide as it states “if he
votes or abstains from voting in such house contrary to any direction” which can subsequently be a ground of defection.
What may constitute these directions is nowhere listed in the Constitution and
subsequently gives immense power to the party leadership.
Now, it will
be pertinent to state that even our neighbourPakistan,where principles of democracy are rarely followed, has
specifically enlisted what these directions are in Article 63A of its
Constitution which as follows:
b) votes or
abstains from voting in the House contrary to any direction issued by the
Parliamentary Party to which he belongs, in relation to—
(i)
election of the Prime Minister or the Chief Minister; or
(ii) a vote
of confidence or a vote of no-confidence; or
(iii) a
Money Bill or a Constitution (Amendment) Bill
Thus, they
have managed to limit the extent to the political parties can have control over
its members.
It is worth
to mention that the dispute between balancing freedom of speech and expression
and anti defection laws dates back to 1982, before the 10th Schedule was
enacted, in the case of Mian Bashir Ahmad
and etcv. State of Jammu & Kashmir and Ors,[4] whereby the petitioners challenged Section
24-G of the Jammu and Kashmir Representation of the People Act, 1957 as
violative of Article 19(1) (a) and Article 19(1) (c) of the Constitution of
India. The J&K High Court in this case vehemently observed that the right
of dissent is essential in a democracy and any anti-defection law which does
not take into account the right of conscious dissent would not only be
unconstitutional but would also be unethical and have no place in a democratic
set up.
Also, the
Supreme Court in the landmark case of Kihoto Hollohan v.
Zachillhu and Ors.,[5] was itself conscious of the fact that
such law might affect and hurt even honest dissenters and conscientious
objectors.
However,
despite these warnings and observations, disqualification on basis of dissent
has become a mayhem in recent times where every type of dissent has become a
ground to petition the Speaker, who most of the times is the member of the
ruling party, to disqualify the dissenter from the House.
Therefore,
the question remains open to adjudication as to what actions may constitute
defection and thus in this light it is important to focus on the international
perspective as well.
International
perspective
In the United States, one of the oldest democracies in the world, it is clearly ruled that a political party has every right to exclude a member from the party, who may have differing views, inspite his right to an opinion and dissent.[6] However, at the same time, a legislator is protected from disqualification in case he opts to oppose his political party on a particular matter. He can be excluded from a party but not the House itself.[7]
On the other hand, in UK, in considering whether actions outside the Houses and committees are also covered, the UK Supreme Court has ruled that it is necessary to consider the nature of their connection to those and whether denying the actions privilege is likely to impact adversely on the core or essential business of Parliament and that it is for the court and not for Parliament to determine the scope of Parliamentary privilege.[8]
It will also
be important to mention the example of Malawi, which is a recent
democracy. In the case of Registered Trustees of Public Affairs
Committee vs. Attorney General and Speaker of National Assembly, the Malawi High Court observed that stretching the floor
anywhere and everywhere outside the House does not just amount to an expansion
of the principle of crossing the floor. It almost amounts to a complete
abandonment of the original principle and to an adoption of a completely new
concept. Where one has not resigned from his party, has not joined another
political party, how that should amount to a crossing of the floor is beyond
comprehension.Therefore, to a certain extent, a member of the house has been
given freedom to dissent and still save his seat in the house. Therefore, it
goes without saying that a member should be only accountable to the electorate
he represents and not to anyone else.
Right to Privacy and Public Duty
It is a well-known
fact by now that right to privacy is a fundamental right as envisaged in
Justice
K.S. Puttuswamy v. Union of India[9]. Moreover, it was observed that it is
a right which protects the inner sphere of the individual from interference
from both State and Non-state actors and allows the individuals to make
autonomous life choices.
However, the
Delhi High Court in the recent case of Sasikala
Pushpa v. Facebook India and Ors.[10], has subjected the right to privacy
to a higher threshold. In this case the court observed that the electorate
has a right to know of the behind curtains meetings of the plaintiff with
particularly with a man belonging to a political party which the plaintiff
before the public criticizes or opposes in the elections. If such meetings with
member of a rival political party, which the plaintiff wants to remain hidden
from the public, are not of interest to the public for the purposes of
maintaining purity of administration and law making, little else would qualify
as of public interest.
Therefore,
this particular observation can have wide repercussions whereby anytime a
member of house tries to defect and participates in meetings with opposition
leaders, the same could be subjected as a public record to be sufficiently
placed before his electorate and thus can be a hindrance in the secretive
process of defection.
Conclusion
The courts
from time to time has observed the various facets of the evils of the anti
defection law on the fundamental rights of the legislator. However, the same is
devoid of any conclusive adjudication as regards to the actions of a legislator
outside the house as per the Indian courts are concerned. Therefore, in this
context, inspite the Supreme Court refraining from adjudicating the case of the
Hon’ble Speaker, Rajasthan Legislative Assembly v.
Prithvi Raj Meena,[11] it still requires a
detailed analysis by the Hon’ble Supreme Court to conclude this open ended
question for once and all.
[1]Civil Writ
Petition No. 7451/2020.
[2] (2016) 7 SCC 221.
[3]AIR 1998 SC
2120.
[4] AIR 1982 J&K 26.
[5] AIR 1993 SC 412.
[6] O’Brien
v. Brown, 409 U.S. 1 (1972).
[7]Barley v.
Luzerne County Board of Elections, 937 F. Supp. 362 (M.D. Pa. 1995).
[8]R v Chaytor,
[2010] UKSC 52.
[9] (2017)
10 SCC 1.
[10] 2020 SCC Online Del 618.
[11] D.B. Civil Writ Petition No. 7451/2020
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