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Democracy at the whipping post

July 28, 2003

In 1985, Parliament passed the Constitution (52nd Amendment) Act, inserting the Tenth Schedule into the great document that frames Indian laws. Rajiv Gandhi's government then held an overwhelming majority of the seats in the Lok Sabha; with 400+ members on the Treasury benches the prime minister could have afforded a great deal of dissent within his party, and still got his way nearly every time. Despite this, his administration thought it necessary to create an amendment setting terms and conditions under which lawmakers who voted against party lines could be disqualified from their membership of the legislature.

Any Member of Parliament (or MLA, in the state legislatures) who voted against his party leader's direction, or refrained from voting when instructed to do so by party whips, could be barred. But strangely, an exception was created; if a sufficient number -- one third -- of a party's members disobeyed orders, then such action would not become grounds for disqualification. Instead the dissenting group would be recognized as having split from the original party. Similarly, if one party merged with another, and not all of the former's members agreed to such a merger, they could safely form a separate entity without fear of exclusion.

The Statute contained other controversial clauses. Independent candidates were prohibited from joining political parties after their election to the legislatures. The Speaker was given considerable discretion to recognize or overrule defections. But most erroneously, perhaps, the legislation barred the Supreme Court and various high courts of the country from exercising jurisdiction over disqualifications resulting from the Tenth Schedule.

There were many reasons to oppose this legislation; a law more clearly subversive of elected representation from the constituencies is hard to imagine. Legal challenges followed, culminating before the Supreme Court in the case of Kihota Hollohon vs Zachilhu and Others. And on that last portion of the text -- barring the courts' interference -- the majority of the justices agreed that the Statute was unconstitutional. Such a restraint on the judiciary requires at least half the states to ratify the amendment; since that action had not taken place the courts could not be denied their right to judicial intervention.

Despite this, the Schedule itself was not struck down. Instead, by a 3-2 majority, the justices ruled that the offending portion of the legislation alone could be separated from the law, and it alone would be invalidated. The rest of the Tenth Schedule would remain.

But placing shackles on the judiciary was not the worst element of the law. The more compelling reason to void the Schedule was that it grossly interferes with an individual legislator's right to represent his constituents as he sees fit, and therefore impacts both his and their freedoms to vote. But this argument didn't make the same grade in the Court's verdict as the issue of their authority did. The judges decided that the harmful effect of this legislation on freedom of legislative dissent was less important than the need to curb the political mischief of lawmakers crossing party lines 'under the lure of office or other similar considerations.'

The next significant consideration of dissent and defections occurred two years ago; the National Commission to Review the Workings of the Constitution took this issue up, as part of its exhaustive work. The Commission recognized the problem, noting that while the Tenth Schedule may have been enacted to curb defections, 'all that has happened is that while individual defections have become rare, en bloc defections are permitted, promoted and amply rewarded.' 

For a while, it seemed that the Commission had hit upon a clever solution. It was suggested that within each legislative party, members may vote without restrictions, and the majority opinion of each party's legislative group would be given the full weight of that party's representation in the assembly. For instance, if the Congress held 40 of 100 seats in a state house, and Congress members voted 22-18 on a matter before the house, then 40% of the House would be presumed to have voted in favor. This would permit each lawmaker to fully vote his conscience or preference, but would also ensure that small breakaway factions could not hold the greater will of their party hostage.

By the time the NCRWC's recommendations saw the light of day, however, this wise understanding of legislative roles had given way to shallow arguments. Rather than provide space for dissent within parties, the Commission recommended that an already flawed anti-defection law be made even more extreme. Under the new proposal, all defecting members, whether individuals or groups, would stand disqualified if they did not toe the party line. A defector voting to topple the government would have his vote invalidated! And defectors would be barred from holding public office for the remainder of the legislative term.

What explains this gross assault on legislators' powers? The Commission's explanation reveals a fundamental mistake. The Commission noted that 'most candidates get elected on the basis of the party that has given them a ticket,' but rather than see this as flawed, the NCRWC used it as an excuse to declare that 'defections allow these candidates to theoretically go to the pole opposite of this party, which is not the basis on which people elected them.'

It is unfortunate that a body constituted to consider the workings of a fine Constitution should endorse such a limited view of representative government. While it may be true that legislators line up to obtain party tickets, this is by no means the preferred standard of political organization. Dissent within individual parties should allow even 'ticketed' legislators to sometimes express opinions contrary to that of their leaders. Indeed, if an MP's constituents demanded that he vote one way on a proposed legislation, and his party high command instructed him to vote differently, he ought to be able to side with his constituents without being forced out of the party itself.

The Commission took exactly the opposite view: that because the high commands of various parties had issued the legislators' tickets to Parliament, they had every right to expect members to vote as instructed. This line of reasoning assumes that a party's top leaders alone express the full range of social, economic, and political opinion that is to be found within that political group; therefore no expression of intra-party dissension can be justified. Remember that during its deliberations the NCRWC did -- as noted above -- consider the need to provide lawmakers the freedom to vote their consciences; considering that, the eventual recommendation was a stunning and total repudiation of its own debates.

Predictably from this compromised version of representative politics, we've arrived at the monsoon session of 2003, when Parliament is poised to enact the next round of anti-democratic law along this woeful path. With 'eliminating defections' providing useful cover, the political big-wigs are embracing the NCRWC's recommendations purposefully, out to ensure that your local representative in Parliament and in the state legislatures is disallowed from overriding their leaders' instructions even if you, the voter, would like him to.

How conveniently short political memory is. The nationalists shepherding this legislation through Parliament found their political toe-hold in one of the very first abuses of the anti-defection law in the mid-1980s. Shortly after the insertion of the Tenth Schedule into the Constitution, the ruling party sought to impose the political will of its leader -- Rajiv Gandhi -- upon its dissenters, threatening them with disqualification from the Lok Sabha if they did not support his fiendish legislation. The matter before Parliament centered around the financial, religious and political struggles of a septuagenarian woman.

Her name: Shah Bano.

Part II: Democracy without dissent?

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Ashwin Mahesh

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