The Ballot Conundrum: The Need for Archived Ballot System in Parliament
Author: Rishi Raj Mukherjee
National University of Study and Research in Law, Ranchi.
Elected Members of the Parliament have been bestowed with the duty of taking decisions that are good for the nation. Most of these decisions about the welfare of the country and policy-making for the country’s future are taken in Parliament through voting. Hence, it is important for the members of the Parliament to exercise their judgment and vote without any bias or coercion. Unfortunately, that is not something that is in practice in the world’s largest democracy, ‘India’. The members of the Indian Parliament have their hand-tied as there is an astounding lack of freedom in the vote they exercise in the Parliament. This practice has even been codified in the Tenth Schedule of the Constitution, which was in fact introduced to prevent the practice of ‘defection’. The Tenth Schedule of the Constitution provides for disqualification of a member from Parliament if he votes against the Party direction. Further, the votes of the members of the Parliament are not recorded unless it is a Constitutional Amendment for which the voting has been initiated. This practice has resulted in the Parliamentary voting to become a mere eyewash of formality whereas it is the top few leaders who alone make the decisions for the entire party. The paper vouches for the accountability of the members of the Parliament and the importance of their freedom in Parliamentary Freedom. The archived voting system for every decision in the Lok Sabha and Rajya Sabha if adopted would considerably increase the responsibility and accountability of the members elected to the Parliament. The paper elaborates on the detrimental effect that affects the democracy when only a few top leaders are allowed to decide the policies for the whole nation and the rest of the members are obligated to follow it. The paper lastly, discusses the Tenth Schedule’s implication of the freedom of the members elected to the Parliament and suggests some procedural changes to overcome these challenges and protect the constitutionality and democratic values of the nation.
Keywords: Tenth Schedule, Parliamentary Voting, Party Decision, Accountability.
The Ballot Conundrum: The Need for Archived Ballot System in Parliament
“Party Politics in India display numerous paradoxical features which reveal the blending of Western and modern form of bureaucratic organization and participatory politics with indigenous practices and institutions.”
- Paul Brass
The most crucial decisions which changed India’s, socio-political and socio-economic landscape have been taken within the walls of the Parliament, by the system of Parliamentary Voting. The members elected to the Parliament by the citizens of the nation have been given the task of legislating laws for the citizens of the nation and taking policy decision for the welfare of the nation. Thus, when such an important responsibility has been given to the Parliamentarians and they reach the Parliament only because of the trust the citizens of the nation put in them by voting for them in the general election, these citizens hence have the right to know about the stance of their leader on important policy decisions which would directly affect them in their daily life. Unfortunately, so, but the largest democracy in the world, India has a system of Parliamentary Voting System of which records are scanty regarding how these Parliamentarians vote or how often do they actually vote or more importantly what do they vote for or their stance on a particular policy or legislative decision.
- The Parliamentary Crisis
The sovereign citizens of the nation who place their trust in certain leaders and vote for them to be elected in the Parliament are denied the very information on how their candidates, who they have elected in the Parliament perform or what are their views and ideologies about the future of the nation. Furthermore, the concept of accountability and democratic decision making are shattered to pieces when the citizens discover news articles stating that the members of the Parliament who they have elected and placed their trust on, have passed eight bills in a time of mere seventeen minutes. In a 2006 study conducted, on the Indian Parliament’s performance as an ‘institution of accountability’, it was observed that the Parliament has lost its erstwhile majesty on account of its disorderly functioning and factors both within and outside the Parliament. The study observed that a cause of this lackluster performance was the intermeddling of too many political parties and the gap between the demands of modern legislation and the capacity of MPs. The study further highlighted that the existing accountability mechanisms of the member so the Parliament are weak and it was mostly the few top party leaders in the Parliament and the rest of the leaders were at best followers and worst not interested in the proceedings of the Parliament. The study showed that most Parliamentarians did not consider legislating laws or policymaking as their primary function instead mostly spent time in their respective constituencies even when the Parliament was in session.
The opaque nature of the Parliamentary Voting System can be observed by looking at the instances of recorded votes in each term of Government. While during the 14th Lok Sabha, during the span of five years from 2004-2008 there has been only twenty instances of recorded votes in the Lok Sabha for three hundred and twenty-three bills for which there was voting, while in the 15th Lok Sabha from 2009-2014 there had eighteen instances of recorded votes in the Lok Sabha. Even more astonishing is the fact that there is no record of any division (recorded votes) in the 16th Lok Sabha from 2014-2019. The system has no transparency at all and the grave condition of the system can be understood when compared to the House of Commons in the United Kingdom (UK), were in the same period of 2004-2008 there were as many as 1060 instances of recorded votes. The true picture is even worse as out of the twenty instances of recorded votes in the 14th Lok Sabha, there were 8 constitutional amendments and a no-confidence motion were recording the votes is compulsory under the Constitution and the Rules of Parliamentary Procedure. This means that there were effectively only 11 instances of divisions or recorded votes. This means that in reality a constituent would know how an MP voted only in about 1.5% of the total number of Bills passed. And this is mere statistics for votes cast in drafting Bills. Parliamentarians vote on every motion and amendment, several of them of such vital importance they can determine the fate of a given piece of legislation. And yet Indian voters have almost no record of their presence in the House, let alone their stand on that particular piece of legislation.
India has the First Past the Post System of election, where the voters are supposed to choose candidates not based on Party Affiliation but rather on the candidate’s individual qualities which is in contrary to the Proportional Representation System where the Party has a greater stronghold since it determines the place of the candidate on the list and consequently voters vote for the Party more than the individual candidate. Hence, in the Indian context the members elected to the Parliament are independent to the identity of their parties. So, the Parliamentarian should actually be accountable to vote in favour or oppose a Bill based on his own judgment free from any Party control. As a representative of a constituency, a member of the Parliament is responsible to the electorate of the constituency from which he is elected and not to the Party, since a Party is nothing but an “aggregation of individuals.” If a member of the Parliament functions or performs his or her duties without any extraneous factors like Party position or party dynamics, is actually one who acts as a true Parliamentarian who is a legislative representative of a constituency and is only accountable to the people of the constituency and no political party, would be a true manifestation of the Parliamentarian’s constitutional position.
Government or a Political Party’s control over the decision making of a member of the Parliament is in violation of the principle of separation of powers, which is a basic feature of the Indian Constitution which is not amendable. Inherent to this principle is that there is the protection of necessary autonomy of the House, its members and the executive. In this context, it appears that the introduction of the Tenth Schedule over the Parliament though on the surface looked to correct the issue of defection which affected the Political Parties, but in fact gives the Political Parties an artificial power great enough to control the narrative and votes of their own party members. According to the Tenth Schedule of the Indian Constitution, if any member of the Parliament votes against the direction issued by the Party, the member would be liable to be disqualified from the legislature. Apart from unfairly constraining free speech, the unfortunate consequence of this law is the degeneration in the quality of the House debate.
- Voting Procedures in the Indian Parliament
It is important for every citizen of the country, and especially law students to understand the importance of Parliamentary Procedure. M.P Jain has observed that Parliamentary procedures govern and define the content of legislation and thus must interest both citizens and legislators.
All decisions in the House are taken by a simple majority of those present and voting or a special majority for constitutional amendments. A decision of the House is made by moving a motion and members vote for or against the decision. This method of arriving at a decision is known as ‘division’. It is so-called because, on the conclusion of a debate on the motion, the Speaker puts the question to the House and invites members in favour of the motion to say “Aye” and those against it to say “No”. The House, therefore, stands ‘divided’ over the question. After determining the decision of the majority based on which side sounds more forceful, the Speaker declares, “I think the Ayes/Noes have it”. This method is commonly known as a ‘voice vote’, since the Speaker’s decision is merely on the basis of the voice carried to the Chair. In the Indian Parliament, voting is generally carried out by ‘voice vote’. In a voice vote, the names of the members voting for or against a motion are not recorded. In case the Speaker believes that a division is unnecessarily claimed, he may just ask members in favour to stand up and then members against the motion to stand up, then take a physical count of the members and declare the result. In such a case too, the names of the members are not recorded.
The lack of transparency of the functioning of the Lok Sabha was indeed a great concern that led to the decision of televising debates on ‘Lok Sabha TV’ which was considered as a great chance for India. Though this was a great change which was highly appreciated but this change has now become meaningless when there is absolutely no account of how the member of the Parliament acts upon his pre-election promises through his work in the Parliament through votes.
- Evolution of Tenth Schedule
The trend of participative government was set by the political parties right during the times of the freedom struggle. Political Parties such as the Indian National Congress were considered sacred in nature and the party may have had internal divisions but there was no betrayal of the Party Line. The principle of a ‘responsible government’ that evolved, allowed the legislature to control the executive by a no-confidence motion. The principle of collective responsibility underlined Party cohesion, but political defections began to take place starting off the debate on an anti-defection law after independence.
In the 1967, Haryana Legislative Assembly, after the incident of multiple party changes within a fortnight by a candidate called Gaya Lal sparked the debate for the need of an anti-defection law. A committee was set up under the chairmanship of Home Minister, Y. B. Chavan to look into the matter of Defection, which tabled its report on 28th February, 1969. Based on this report, , a Constitution Amendment Bill was introduced in the Lok Sabha on May 16, 1973 and was referred to a Joint Committee of the two Houses, but unfortunately, before the Bill could be deliberated upon, the Lok Sabha was dissolved causing the Bill to lapse. Following this, another bill was introduced on 28th August 1978 but this bill was heavily criticized for failing to distinguish between defection and dissent. After a lot of debate and discussion, even this bill had to be withdrawn. Finally, in 1985, the Constitution (Fifty-Second) Amendment Bill was passed which introduced the Tenth Schedule to the Constitution. The Bill further amended Articles like 101, 102, 190, and 191 which were related to the vacation of seats and disqualification from the State Legislatures and Parliament.
- Tussle between Free Vote & Party Mandate
The concept of the free vote has not always been alien to the Indian Parliament. Prior to the inception of the Tenth Schedule that is the Anti-Defection Law, there were infact some instances where a free vote had been adopted in the Parliament even though they may be for shrewd political gains. One of the most famous instances of a free vote which has been etched in the Indian Political drama was the Presidential Election of 1969. The Presidential Election of 1969 was one where Indira Gandhi’s government took a call and allowed free voting which ultimately led to the defeat of the Congress-led candidate. This reinforces the power of the free vote and shows the lack of free will of the party members. The main reason behind adopting a free vote in this scenario was actually a ploy from Indira Gandhi. Indira Gandhi believed that Sanjiva Reddy, the Congress nominee, was set up as a candidate for President by some factions of the Congress who were against Mrs. Gandhi and wanted to delegate powers to the President thereby weakening the power of her post of Prime Minister. The demolish this political trap by her fellow Congress members, Indira Gandhi called for a free vote provision, and thus the opposition candidate V.V Giri won with the support of Congress rebels, the Socialists, the Communists, the DMK and the Akali Dal. While this was a special circumstance and actually a politically shrewd move played by Mrs. Indira Gandhi but it nevertheless shows the power of the free vote.
It is pertinent to understand the importance of the Tenth Schedule and the noble purpose that it sought to achieve while criticising the stifling effects it has had on the members elected to the Parliament and the Indian Democracy as a whole. Before the Anti-Defection Law that is the Tenth Schedule was passed jumping from one party to another depending on a politician’s personal gain was a common practice. Infact, Subhash Kashyap in his book writes, “There was a time before the anti-defection law was introduced where nearly half the elected members had jumped parties at least once in their political career.” The rationale behind introducing the Anti-Defection Law was indeed sound and just. The logic used was that Political Parties function as disciplined units and assist candidates in their electoral campaigns. In return they expect complete Party loyalty and cohesiveness amongst members. Further substantiating the argument, India is a culturally and geographically diverse and heavily populated country and in such a context one may justify the existence of political parties even more, to assist the uninformed voter in making quick decisions. The average voter in India may not have sufficient knowledge of individual candidates and voting in line with a Party or against it, becomes convenient and even practical. The argument that the political parties use in this respect is also sound and logical. They argue it is the legitimate expectation of a voter that when he or she votes for a candidate of a particular Party, the candidate ought to act in line with the Party’s decisions and when the candidate does not do so the voter may feel cheated. Probably the strongest argument of the section in support of the Tenth Schedule is that when despite the existence of the Tenth Schedule, there are frequent horse trades and candidates switching parties so it is very clear that without the law there would be a complete pandemonium.
This paper acknowledges all the above arguments and respects the instrumental role that the Political Parties have in India and in no way undermines the great legacy and contributions these parties of made to the India Political System. But at the same time, one must understand that their vital role ought not to give them the authority to stifle the varying views of its members. It is hence very important to understand the crucial distinction between dissent and defection. For the purposes of Party Loyalty, Political Accountability and Order in the House, Anti-Defection laws become important. And yet when a law does not allow genuine dissent based on substantive reasons of what may be good for the country as a whole in the view of the candidate, it defeats the very purpose of Parliamentary free expression.
Most Political Parties in the Indian Context have very specific and often hidden agendas or goals that they try to achieve. Some party may aim for maximum monetary gains from party politics another may aim to take control of a certain sector of the economy or state. Now, the common people aren’t aware about these hidden goals as they are eye washed by the pre-election promises of from these party leaders. So, when an electorate votes for a particular political party unknowingly ends up supporting the hidden agendas and goals of the party. On careful analysis, we find that the Constitution itself through the Tenth Schedule supports the agendas of the Political Party which leads to nothing but a State supported Oligarchy. The goal of the oligarchy starts to reflect as if it were the goal of the people themselves. In reality however the people may even be unaware of the fact that their support of the political Party has led to their indirect support of the oligarchic tendencies of the Party. In this context is therefore a real danger in assuming that members elected to the Parliament must necessarily reflect or tend to all the goals of their political Parties. In such a background some writers have compared political Parties to the form of an organized mafia that has to its disposal all the necessary resources of power and uses its offices to provide benefits to its members and followers.
- The Implications of the Tenth Schedule
It is very interesting to note that, the Tenth Schedule gave constitutional recognition to political parties for the first time. Prior to this amendment to the Constitution, the only mention of a political party was in the Registration of Electors Rules, 1960 with respect to election symbols. In Para 2(1)(b) of the Tenth Schedule it is provided that,
“A member of the House belonging to any political Party shall be disqualified for being a member of the House 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 authorized 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 is this provision that first recognized and made mandatory voting according to Party line. While this is in contradiction to Articles 105 and 194 of the Constitution which gives complete freedom to legislators to vote in the Parliament free from court proceedings. It has time and again been pronounced by the Supreme Court that the freedom of expression of members in the House is on a higher footing than that of a citizen because of the special function performed by them. The dichotomy between the Tenth Schedule and Articles 105 and 194 can be obliterated only if the Tenth Schedule is read as subject to Party changing alone and not voting in the Parliament. In Kihoto Hollohan v. Zachilhu, the Supreme Court has also emphasised that, “We approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule.”
It is a flawed understanding to assume that when a government is defeated on a substantial issue it automatically means that it has lost the confidence of the House. After a defeat on a major policy issue, a government must subsequently dissolve only when a vote of no confidence is positively made against it. When the Indian Parliament debated the nuclear deal on 22 July, 2008, the question of whether the government had requisite support had to be decided only after a no-confidence vote was taken and not merely because several MPs voiced their protest against the deal. So, contrary to popular belief, even on matters of prime importance to the Party belief, if members are to vote outside the Party line it will not lead to immediate instability of the government.
When the constitutional validity of the Schedule was challenged, in its landmark judgment in Kihoto Hollohon v. Zachilhu, the Supreme Court in order to contain this far-reaching blot on legislative freedom, sought to read down the words ‘any direction’ to two main areas:
- Firstly, it means that a petition for disqualification is in order only if a member, Votes or abstains from voting against the Party line upon a no-confidence motion.
- Secondly, when a member votes or abstains from voting against the Party line upon an integral policy and programme of the political Party on the basis of which it approached the electorate.
- Doctrine of Party Mandate & The Kihoto Judgement
The Kihoto Judgement has surely tried to limit the controlled voting to some extent but the gaps in the judgement render the issue far from being solved. Some of the terms which the Supreme Court used to interpret the Tenth Schedule are ambiguous in nature and the parties interpret these terms in their own benefit to coerce the members of their party to vote along the Party Line. The Supreme Court used words such as ‘integral policy and programme of the political Party on the basis of which it approached the electorate.’ To propagate the Mandate Doctrine. The Mandate doctrine assumes that electors vote for candidates based on their Party affiliation. Hence once elected on the basis of a recognized set of principles or agendas, the candidate must toe the line and stay true to her Party’s promise on whose basis the constituents voted for her. This doctrine assumes that every Party has a definite agenda and it is only on that basis that voters elect a candidate. This assumption is far from the truth. In India, parties like the BSP have no election manifesto at all. Moreover, analysing the situation in a pragmatic manner, it is impossible for a political Party to have a stand on each and every issue and there are several policies that may not have been foreseen by the Party. In such circumstances, a Party makes spot decisions based on superfluous considerations of Party Image, profitability or alliance politics. This is fine when real-time actions have to be taken. Unfortunately, the Tenth Schedule allows a Party to bind its Parliamentarians to any such spot decisions. Voters cast their votes based on a series of factors such as performance of the candidate, specific issues that they believe in strongly, religious affiliations, image of a particular candidate, promised sops, etc. Party manifesto may hardly ever surface in this list and if it does it has only a small role to play even if any. Debates in the Parliament is made meaningless by having such control over the votes of the members of the Parliament. If parties themselves are undecided over issues and often change their mind based on the issue at hand and the intervening circumstances, by the same token restricting the Parliamentarians to be deprived of a choice to change their mind is wrong and unjust.
Even the Kihoto judgment does not expressly negate the argument that the Tenth Schedule stifles legislative freedom. It attempts to rationalize the provisions of the Schedule by calling it “an area of experimental legislation” which has its “plus and minus points”. The Court in this judgment has taken to defend the political parties by stating that,
“Any freedom of its Members to vote as they please independently of the Political Party’s declared policies will not only embarrass its public image and popularity but also undermine the public confidence which, in the ultimate analysis, is its source of sustenance — nay, indeed, its very survival…”
The Judgement doesn’t take into consideration arguments like when the elections of the President and the Vice President take place by secret ballot, which means the voting is free, it is against Article 14 (right to equality) to allow other quasi-judicial functions to be dictated by Party norms. It was observed by the then Speaker Shivraj Patil in the famous Janata Dal – V.P. Singh defection that the Anti-Defection Law seriously curtails the privilege of members since they have to strictly obey Party whips. Patil felt that members were thus denied even the ordinary freedom of voting, a freedom that was freely available to every citizen outside the Parliament. To respect the institution of political Parties, a distinction could be made between an administrative function and a legislative function to say that ‘stability of the government’ being the basis of sustainability of the Parliament, members may be asked to vote in line with Party views. In all other respects, free legislative choice seems necessary.
“The centrepiece of republican constitutional structure is accountability: those in positions of political power must be accountable to those over whom (and in whose name) such power is exercised.”
The aspirations of the citizens of the nation or the electorate is of the utmost importance in a Parliamentary Democracy such as India. It follows that the aspirations of the voter are more completely manifested by a representative unfettered by Party directions. A voter living in a democracy in a different part of the world with an identical parliamentary system of governance, would have far greater access to the votes cast by a candidate the electorate has elected to the Parliament. It has become common now that Parliamentarians have to seek an interim injunction from the Supreme Court to prevent their Party from disqualifying them from the House for voting against the Party whip. Such application of the Tenth Schedule is unjust and detrimental to Parliamentary Democracy. The importance of a political Party as cohesion of ideas cannot be undermined. But a concern arises when the political Party has excessive control over the MP. If the parliamentary expression has to be meaningful, it needs to be freed from the shackles of rigid Party control. MPs should be allowed to freely change their opinions on matters of public importance without the legal sanction of ouster from the legislature.
It is time to affirm in the Indian scenario that India’s FPTP (First Past the Post System) is really the representative of the constituency and is not a Party mascot like in the representative system. Therefore, in the absence of Party lists and voting thereof, a Party’s role is minimal. As a Parliamentarian is elected by the people, he or she ought to represent the wishes of the people alone. Following the same logic if a Parliamentarian is guilty of changing her views too often that are not in the interest of the people, it should lie with the constituents alone to evict the candidate from the seat in the next election and not the Political Party, which has a limited role to play in her actually getting elected. The idea of accountable voting in the Parliament thus is not just about numbers. It is about restoring the importance of debates, about truly fulfilling the directive of parliamentary privileges and most importantly about implementing a citizen’s right to know.
 Paul Brass, ‘Politics of India Since Independence’, (1990), p. 64.
 P.V Narsimha Rao v. State through CBI (1998), 4 SCC 626, (JMM Bribery Case).
 ‘The Indian Parliament and its institution of Accountability’, Devesh Kapoor & Pratap Bhanu Mehta, Democracy, Governance and Human Rights Programme, (United Nations Research Institute for Social Development), p. 23.
 Ibid, p. 30.
 ‘Push button parliament-why India needs a non-partisan, recorded vote system’, Shalaka Patil.
 Richard S. Katz, Democracy and Elections, (1997) p. 207.
 Adam Tomkins, Our Republican Constitution, (2005) p. 138.
 ‘Parliament: Caucuses, Article 9, and Open Government – If Not, Why Not?’, Ross Carter, NZULR, p. 99.
 Indian Const., Tenth Schedule – Provision as to Disqualification on Grounds of Defection.
 Para 2 sub-para (1) clause (b) of the Tenth Schedule.
 M.P. Jain, Indian Constitutional Law, (6th Ed, 2010).
 Indian Const, art 101 and art 368.
 Subhash Kashyap, ‘Parliamentary Procedure-Law, Privileges, Practice & Precedents’, (2d ed. 2006).
 Rules of Procedure and Conduct of Business in the Lok Sabha/Rajya Sabha.
 Rule 367 Procedure Regarding Divisions in Rules of Procedure and Conduct of Business in the Lok Sabha/ Rajya Sabha.
 Prakash Chander, ‘Defection of Shyamlal Nehru to the British side after being elected from the Congress Party in India, Government and Politics’, (1984).
 Glanville Austin, ‘The Indian Constitution: Cornerstone of a Nation’, (1966) p. 32-33.
 Paras Diwan, ‘Aya Ram Gaya Ram: The Politics of Defection’, Journal of the Indian Law Institute, Vol. 21, No. 3, July-September 1979, pp. 291-312.
 Madhu Limaye, ‘Politics After Independence’, (1982), p. 182-184.
 Deep Chand Bandhu, ‘History of Indian National Congress: 1885-2002’, (2002).
 Mahendra Pratap Singh, ‘Split in a Predominant Party: The Indian National Congress in 1969’, Abhinav Publication, 1981.
 Subhash Kashyap, ‘Anti-defection law and Parliamentary Privileges’, (2nd Ed, 2003)
 ‘Do informed voters make better choices? Experimental Evidence from Urban India’ Abhijit V. Banerjee, Selvan Kumar, Rohini Pande and Felix Su.
 ‘Push button parliament-why India needs a non-partisan, recorded vote system’, Shalaka Patil.
 ‘On the Side of the Angels, An Appreciation of Parties and Partisanship’, Nancy L. Rosenblum, (2008).
 Chawla’s ‘Election Law and Practice’, (2004), p. 1708.
 Indian Const. 2 Para 2(1)(b) of the Tenth Schedule.
 Keshav Singh Presidential Reference, (1965) 1 S.C.R. 413.
 M.S.M. Sharma v. S.K. Sinha, A.I.R. 1959 SC 395.
 A.I.R. 1993 SC 412.
 A.I.R. 1993 SC 412.
 In her election speech Mayawati said, “As it is known to all, Bahujan Samaj Party or B.S.P. is the only Party in the country, which believers in deeds and not in words. That is why our Party, unlike other parties does not release an election “Manifesto” rather B.S.P. only makes an “APPEAL” to people for votes…”, Mayawati’s promise to India: BSP Manifesto, April 16, 2009.
 5 A.I.R. 1993 SC 412, p. 614.
 Kihoto Hollohan v. Zachilhu, A.I.R. 1993 SC 412.
 Dr. Subhash Kashyap, ‘Disqualification on Grounds of Defection, Parliamentary Procedure, Law, Privileges, Practice and Procedure’, (2d ed. 2004).
 Adam Tomkins, Our Republican Constitution, (2005).
 Amar Singh v. Union of India; Writ Petition (Civil) n. 317 of 2010.