The Role of Political Whips under the Tenth Schedule: Dhiyaaneswar

THE ROLE OF POLITICAL PARTY WHIPS  UNDER THE TENTH SCHEDULE: AN ANALYSIS

Author: Dhiyaaneswar

School of Law, CHRIST UNIVERSITY

Abstract

The Tenth Schedule to the Indian Constitution which is also known as the ‘anti-defection law’ has enhanced the importance of political party whips in Indian legislatures. By virtue of the Tenth Schedule, an elected legislator who votes against the directions issued by a political party whip is at the risk of losing his seat. A literal interpretation of paragraph 2(1)(b) of the Tenth Schedule would mean that elected representatives cannot exercise their votes according to their own concise or the sentiments of their electorates. This article examines the meaning, functions and types of whips in India. It analyses the role of political party whips under tenth schedule and highlights the lack of clarity in the circumstances in which a whip may be issued. Through this article the author argues that the issuance of whips should be restricted only to votes of confidence or no confidence in order to strengthen democracy and legitimacy of the democratically elected government.

Keywords: Whip, defection, democracy, political parties, tenth schedule

INTRODUCTION

Indian parliamentary system is largely centred around political parties. Very often individual elected members do not express their own opinions in the legislatures. The Tenth Schedule to the Indian Constitution which is popularly known as the ‘anti-defection law’ allows political parties to issue directions or whips to its elected legislators, requiring them to vote in a particular manner. All political parties in India are allowed to issue whips to its elected members.  Political parties also appoint an elected party member in the House called ‘Chief Whip’ to issue whips to the elected members so that they act in line with the decisions of the political party. Party whips have assumed a very significant position in the country’s parliamentary system of democracy after the passing of the Constitution (Fifty Second Amendment) Act, 1985, which incorporated Schedule X to the Constitution of India. The Tenth Schedule puts elected members at the risk of disqualification if they vote against the directions issued by the party whip.

The idea behind issuing whips is to ensure party discipline and prevent unprincipled defections. However, the present whipping system directly hampers free expression and deliberative decision making which are crucial for a democracy. The anti-defection law is being used as a tool to suppress any form of dissent inside political parties and this is very uncharacteristic of a healthy democracy. The need for a party member to secure attendance, ensure discipline and decorum is undisputed. However, frequent issuance whips to the elected members is nothing short of authoritarianism. This article analyses the concept of ‘whipping’ in India in light of the objective of strengthening democracy and the legitimacy of the elected government. The author in this paper, urges that the fanatic emphasis given to political parties in Indian legislatures has to be reconsidered.

THE CONCEPT OF ‘WHIP’

The term ‘whip’ has its roots from the British colonial practice of “whipping in” legislators to fall in line with the party decisions. Oxford English Dictionary defines the term ‘whipper-in’ as “a huntsman’s assistant who keeps the hounds from straying by driving them back with the whip into the main body of the pack.” Just like the hunter who keeps the hounds together, a party whip tries to bring together different members of the political party in the Parliament. Political parties expect elected members to show loyalty to the party while voting. The whipping system is a mechanism to ensure the same. According to Gladstone, the concept of whipping emerged in the British Parliament as a result of the division of the House of Commons into two major parties namely – Liberal and Conservative. When the government majority dwindled, there was an urgent need to maintain organization and discipline of the house. Therefore, political parties started appointing a chief whip to issue whips to its legislators.[1]

The word ‘whip’ is used in two different senses. It is the name given to the official appointed by the political party to organise parliamentary business and control the behaviour of party members in the Parliament. Political parties regardless of the size of their presence in the Parliament appoint a ‘Chief Whip’. In India, the minister of Parliamentary affairs is the Chief Whip of the Government. The chief whip may be assisted by a number of deputy whips depending on the number of party members in the house.

The party whips have three main functions namely-management, communication, and persuasion.  The whips are required to maintain order and decorum of the party members in the Parliament. They keep the elected representatives informed about the decisions of the party and they pass on any dissent or dissatisfaction of the elected representatives to the party leaders. A whip of a political party is often required to work closely with that of the opposition party to secure mutual understanding and finalise the business of the government.

The word “whip” can also be used to refer to a written order requiring the party members to attend a session in the legislature for an important vote or vote only in a particular way. A whip is generally in the form of circular detailing the parliamentary business to the elected members.

The whips issued to members can be of three types: one-line, two-line or three-line. The number of times the text is underlined reflects urgency and the importance of the whip issued. A one-line whip is issued in case of less important matters and non-compliance does not necessarily attract disciplinary action. A one-line whip is in the nature of a request from the political party and it is merely ‘advisory’ in nature. Such whips are issued for matters that are uncontroversial. A two-line whip is a more- stronger directive issued during fairly essential policy issues. A three-line whip on the other hand is issued in extremely important occasions like the no-confidence motion or a budgetary motion. Failure to comply to these directions would lead to strict disciplinary action like suspension or dismissal from the political party. When a three-line whip is issued, it is very difficult to obtain permission to skip the vote.

INTERNATIONAL SCENARIO

The practice of issuing whips to elected representatives is not a feature unique to the Indian Parliamentary system. It is present in several democracies across the world. However, the binding nature of the directions or whips varies from a country to a country. The anti-defection law that disqualifies elected representatives who contradict the whips is present in commonwealth nations like Singapore, Kenya and Bangladesh. However, such a legislation is not present in the United Kingdom and the United States.

India’s Westminster model of Parliament is derived from the United Kingdom. In United Kingdom, the Chief Whip is responsible for administering the whipping system that ensures that members of the party attend and vote in Parliament according to the wishes of the party leadership. Whips are appointed by each party in Parliament and they are responsible for ensuring that the business in the parliament occurs as planned.  However, unlike India, the matters of defections are dealt as per the internal rules of the political parties. There is no anti-defection law in the United Kingdom and elected Parliamentarians are free to vote as per their conscience.  

In the United States, the position of party whip was not present in the Senate until 1913 owing little ideological differences between in the political parties. Since 1913, party whips are appointed in the House of Representatives as well as the Senate. The whip of a political party act as the assistant majority or minority leader. However, elected members in the United States do have to strictly adhere to the party whip because of the absence of an anti-defection law.[2] Legislators in the United States enjoy the right to freedom to speak or not speak in the presence of something provided by the First Amendment just like ordinary citizens.[3] Political parties on the other hand have the right of association and re-association. In case of any disagreement with the party leadership, an elected member can be expelled from the political party but not the Senate.

THE ROLE OF PARTY WHIPS UNDER THE TENTH SCHEDULE OF INDIAN CONSTITUTION

In the absence of an anti-defection law, elected members would engage in unprincipled defections following lucrative offers from other political parties. This practice of alluring elected representatives with money, political office or other benefits is called as “political horse trading.” Political horse trading is a serious threat to government stability. In the late 1960s the phrase “Aaya Ram Gaya Ram” became popular across India. It was coined after Gaya Lal who was elected to  Haryana Legislative assembly as an independent candidate in 1967, joined the Indian National Congress (INC), and then changed parties thrice in a fortnight. In order to prevent such defections, the Tenth Schedule was inserted into the Indian Constitution through the fifty second Amendment. The tenth schedule is based on the premise that a candidate is set up by a political party and if he wishes to change his affiliation, he shall be divested of his seat in the legislature.

Neither the Tenth Schedule nor the Indian Constitution mentions the word ‘whip’ explicitly. However, the power to issue whips can be inferred from paragraph 2(1)(b) of the Tenth Schedule which reads as follows:

“if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”

It can be seen that directives issued by whips are the basis for disqualifying elected representatives under the Tenth Schedule. Any elected member who refuses to comply with the whip shall be spared from the rigours of the anti-defection law only if 2/3rd of the members of the party have consented to a merge with another political party. Before the introduction of the Tenth Schedule, political parties were not formally recognised anywhere in the Indian Constitution. It is the Tenth Schedule which firmly asserted the role of political parties in Indian legislatures by making of “party loyalty” a legal requirement.

LACK OF CLARITY IN THE TENTH SCHEDULE

The Tenth Schedule was introduced only with the intention of maintaining stability of the government by curbing the evil of floor crossing during confidence or no confidence motions. However, it has raised a concern about the nature and extent of directions or whips issued by political parties.

Paragraph 2(1)(b) uses the words “any direction”. It does not provide any guidelines on the circumstances in which a whip can be issued. Applying the Tenth Schedule to any direction would mean that an elected member would be disqualified even if he wants to genuinely disagree from the party’s policies. A truly democratic country is one that promotes deliberative decision making and consensus building that is not restricted to party boundaries. The Constituent Assembly debates that shaped the Indian Constitution show that the freedom to express one’s opinions and vote irrespective of party affiliations could provide valuable insights for future decision makers. A literal interpretation of paragraph 2 (1)(b) hampers such a deliberative decision-making process. It reduces elected representatives to conscienceless individuals driven by their political party in whichever way the party directs them.[4] The above-stated problem is reflected by the minority view in Prakash Singh Badal and Ors. v. Union of India and Ors[5]. In this case, Justice Tiwari. J opined:

“The Member would virtually lose his identity and would become a rubber stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution.”

It can be seen that instead of reducing elected representatives to mere puppets of the political parties, Justice Tiwari recognises that elected representatives as individuals with conscience. This recognition is very essential from strengthening the parliamentary democracy in India.

The minority view in Prakash Singh Badal is accepted and reiterated by majority in Kihoto Hollohan v. Zachillhu[6]where the court held that the application of the Tenth Schedule is limited to a vote on motion of confidence or no confidence in the Government or motions relating to “a matter which was an integral policy and programme of the political party on the basis of which it approached the elaborate”. It is clear that the court’s intention is to limit the scope of the whips issued by the political parties to extremely important matters. Although it is clear that the court rejected the idea of unrestricted power of the political whip, the judgement proved to be ineffective. This is mainly because of the use of unclear phrases such as “integral policy” and “programme of the party on the basis of which it approached electorate. In reality, there is no consensus what amounts to an “integral policy issue”. Party whips use this as a loophole to subvert the real intention of the Supreme Court. Under the guise of “integral policy matter”, political parties could still coerce elected representatives to vote in accordance with the direction of the party.

Another important problem that requires clarity is the selective application of the anti-defection law. The speaker of the House, often being the member of the ruling party does not have any incentive to enforce the anti-defection law if the defections are in favour of his political party. Directions that are issued by the party whips of the opposition parties are often not enforced by the speaker. For example, in Andhra Pradesh as many as 23 elected members of the legislative assembly from YSR Congress Party to Telugu Desam Party between 2014-2019. However, they were not disqualified under the anti-defection law and several defected legislators were given ministerial posts. This kind of selective application of the anti-defection is nothing but a mockery of the democracy. There is a need to give clarity on the application of the tenth schedule by the speaker to whips issued by opposition political parties.[7]

THE PRACTICE OF WHIPPING VERSUS FREEDOM OF SPEECH

Affiliation to a political party is not a requirement for an eligible Indian citizen to contest in elections. Political parties are merely an institution through which candidates mobilise their votes. It is true that consensus among elected representatives of a political party is essential to run a stable government. However, this does not mean that elected representatives can compromise their individual opinions and sentiments of their electorate by adhering to the decisions of a political party. By virtue of Article 81(1) (a) of the Indian Constitution, members’ house of the people i.e., Lok Sabha, shall be elected directly by the people. They participate in the decision-making process through a parliamentary procedure. The right of individual citizens to have their representatives participating in the decision-making process through discussion and voting in the parliamentary process is sidestepped by the anti-defection law that puts political parties in the forefront. Elected representatives might voice out their opinions in party meetings but in reality, the whip devalues their concerns. It leaves elected representatives with no choice but to confirm to the party whip.

The freedom of parliamentarians to express their concerns freely has obtained immunity under Article 105(2) of the Indian Constitution which reads:

 “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

Article 105(2) envisions a deliberative decision-making process that transcends party affiliations. Elected representatives regardless of their party affiliations are required to express their votes freely. This would result in well debated and carefully thought out legislations that could address the concerns of a diverse population. Issuance of whip under the Tenth Schedule is contradictory to the vision of Article 105 (2). It is pertinent to note that the whipping systems weakens internal democracy in political parties that are often riddled with dogmatism and nepotism. The freedom of speech and expression available for the legislators adds the value to the entire idea of a democratic form of government and this is what makes a democratic government different from other forms of government like monarchy. Moreover, frequent disqualification of elected members for disagreements on policy issues would push up the election expenses in the country and undermine public confidence on the elected government.

CONCLUSION AND RECOMMENDATIONS

In light of the above discussion, it can be concluded that the present system of disqualifying elected members who disobey the direction or whip issued by the party undermines accountability of the elected representatives to the electorate. It is antithetical to the idea of rigorous deliberative decision making envisioned by the makers of the Indian Constitution.

The author is of the opinion that the right way forward is to clearly define the role of whips in the Parliament and limit the issuance of whips to motions of confidence or no confidence. Political parties are capable of coercing party members in multiple informal ways. Therefore, that anti-defection law should not interfere with the internal ideological differences in the political parties. Efforts have been in the past in this direction. The Goswami Committee report issued in 1990 has suggested that the paragraph 2(1)(b) has to be amended as follows:

“(b) voting or abstention from voting by a member contrary to his party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or Money Bill or motion of vote of thanks to the President’s address.”

The 170th Law Commission of India report has suggested that whips should be issued only on occasions “when the voting is likely to affect existence or continuance of the government and not on all and sundry occasions”.

Along with the above-mentioned reforms, the author suggests that the use of the word ‘whip’ has to be changed to “a party guide” as the word “whip” itself now signifies authoritarianism which is opposed to democracy. The practice of issuing whips on each and every policy matter should end, and individual elected representatives should be allowed to vote freely. The United States or United Kingdom model of expelling dissenting MLAs and MPs from the party without disqualifying their seat should be adopted in India.


[1] Viscount Gladstone, The Chief Whip In The British Parliament, 21 APSR 519 (1927).

[2] U.S. Senate: Party Whips, Senate.gov., (Sept.12, 2020, 10:04 AM) https://www.senate.gov/artandhistory/history/common/briefing/Party_Whips.htm.

[3] Gewertz v. Jackman (1979) 467 F.Supp. (DNJ).

[4] Nani A Palkhivala, Our Constitution Defaced And Defiled (1974).

[5] Prakash Singh Badal and Ors. v. Union of India and Ors. AIR 1987 P H 263 (India).

[6] Kihoto Hollohan v. Zachillhu AIR 1993 SC 412 (India).

[7] Narasimha Donthineni, Opinion: India Needs To Rethink Its Anti-Defection Law, The Logical Indian.com (Sept. 12, 2020, 10:04 AM), https://thelogicalindian.com/opinion/anti-defection-law.

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