Governance Now: New Delhi: Wednesday,
June 01, 2016.
According to
a recent news report published by a prominent national daily, some newly
elected MLAs in West Bengal were being required by their leaders to sign an
oath of allegiance to their political party. Whether this measure has been
authorised by the party's apex leadership or is more of a localised show of
fealty to the leadership remains to be proved. However, two RTI interventions
made recently, with the Secretariats of the Lok Sabha and the Rajya Sabha,
shows that MPs have never cast their vote in parliament against the ‘whip’ or
the diktat of their respective political parties since May 2009 (until March
2016).
Freedom of
action in parliament
Article
105(2) of the Constitution guarantees freedom of speech and action for every MP
on the floor of the houses of parliament. No MP can be sued in a court of law
for anything said or done on the floor of the house when parliament is in
session. This provision reads as follows:
"(2) 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."
However, the
Tenth Schedule to the Constitution, popularly known as the anti-defection law,
introduced by the 52nd constitutional amendment in 1985, makes voting or
abstaining from voting, contrary to the directions issued by one's political
party, a ground for disqualifying an MP from the membership of the house.
This
disqualification is however subject to an exception. If the MP has voted or
abstained from voting against the party ‘whip’ by obtaining prior permission
from the competent authority and such authority has condoned such action or
abstention, he or she will not attract disqualification.
Other grounds
for disqualification of an MP include defecting from the parent political party
without resigning one’s seat in the house. In all such matters the decision as
to whether the MP attracts disqualification from the membership of the house
will be made by the speaker in the case of the Lok Sabha or the chairperson in
the case of the Rajya Sabha. Both houses have notified Rules for implementing
this anti-defection law. Although the legal provisions state that the decision
of the presiding officer will be final, such decisions are subject to judicial
review on grounds of mala fide intent, amongst others.
Rule 3(6) of
The Members of Lok Sabha (Disqualification on Grounds of Defection) Rules, 1985
provides for the procedure for enforcing the provision for MPs to cast a vote
against their party’s whip. This Rule reads as follows:
“(6) Where a
member belonging to any political party votes or abstains from voting in the
House contrary to any direction issued by such political party 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, the
leader of the legislature party concerned or where such member is the leader,
or as the case may be, the sole member of such legislature party, such member,
shall, as soon as may be after the expiry of fifteen days from the date of such
voting or abstention, and in any case within thirty days from the date of such
voting or abstention, inform the Speaker as in Form II whether such voting or
abstention has or has not been condoned by such political party, person or
authority.
Explanation.—A
member may be regarded as having abstained from voting only when such member,
being entitled to vote, voluntarily refrained from voting.”
Similarly
Rule 3(5) of The Members of Rajya Sabha (Disqualification on Grounds of
Defection) Rules, 1985 which applies to the MPs of the Rajya Sabha reads as
follows:
“5) Where a
member belonging to any political party votes or abstains from voting in the
Council contrary to any direction issued by such political party 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,
the leader of the legislature party concerned or where such member is the
leader, or as the case may be, the sole member of such legislature party, such
member, shall, as soon as may be thereafter and in any case within thirty days
from the date of such voting or abstention, inform the Chairman as in Form-II
whether such voting or abstention has or has not been condoned by such
political party, person or authority.
Explanation.—A
member may be regarded as having abstained from voting only when he, being
entitled to vote, voluntarily refrained from voting.”
So the
Constitution clearly recognises the right of an MP to vote against the party
diktat and the Rules made by the two houses provide the procedure for the
exercise of this right. Have MPs exercised their right to vote against the
party whip in the recent past is a pertinent question that any voter may ask.
No MP has
crossed the party diktat since May 2009
The
secretariats of the houses of parliament have confirmed in their reply to my
RTIs that they have not received any intimation from any major political party,
about condoning the action of their MPs voting or abstaining from voting
against the party diktat during the last seven years. I did not ask similar
information for earlier periods as the secretariats might have treated my
request as being vexatious holding that I had asked for records that are more
than 10 years old and they would have had to search for them long and hard.
The RTI
replies imply that MPs are willing to toe the party line always, rather than
talk to the citizens whom they represent and then vote according to their
considered advice even if it is against the party’s diktat. Neither have these
MPs voted or abstained from voting according to their conscience and against
the party diktat. In many conferences, MPs lament the “restriction” on their
freedom imposed by the Tenth Schedule of the Constitution that prevents them
from going against the party ‘whip’ on pain of disqualification. If they were
to vote or abstain from voting against the party whip, they say they would be
treated as defectors and consequently lose their seats. Cutting across party
lines, four MPs expressed their helplessness in this manner at a conference
organised in Delhi by a prominent parliament-watch organisation a couple of
months ago.
However, the
MPs have almost never bothered to explain to the people why they have never
exercised their right to vote according to the wishes of the people whom they
represent or according to their conscience, despite being empowered by the
Constitution and the 1985 House Rules to so do.
So the latest
news about the alleged swearing of oaths of allegiance in a prominent political
party comes as no surprise because the behaviour of most of the MPs in
parliament when it comes to voting on a law or any other motion tabled in the
house (when a whip is issued) at least during the last seven years has always
been guided by loyalty to the party diktat and little else. The latest exercise
of allegedly swearing allegiance on paper in West Bengal is only a small drama
occurring outside the legislature which only confirms the long-held belief that
once elected, politicians show greater loyalty to the party they represent instead
of the people who elected them.
The RTI
interventions reveal poor compliance by political parties with anti-defection
related disclosures
In my first
round of RTI interventions I also asked for the documents that the political
parties represented in either house of parliament submitted to the respective
presiding officers under the respective anti-defection Rules. The Rules of both
houses mentioned above require all parliamentary parties to submit a list of
their members in either house who are the competent authorities with whom the
presiding officers will communicate for the purpose of dealing with cases of
defection and also copies of the parties’ constitutions and their internal
rules and regulations.
The Central
Public Information Officer (CPIO) of the Rajya Sabha secretariat pointed out
that no such information had been submitted by the parliamentary parties since
May 2014 (when the current Lok Sabha was constituted). The CPIO of the Lok
Sabha secretariat first invoked Section 7(9) of The Right to Information Act,
2005 (RTI Act) and suggested that I inspect the documents because they were
voluminous. Later on he supplied copies of the covering letters sent by
parliamentary parties which I found during the inspection (3rd attachment). The
documents obtained from the Lok Sabha secretariat indicate the following:
1) Only the
BJP, Shiv Sena, YSR Congress, LJP, AIUDF, SAD, Apna Dal and JD(U) have
indicated who the competent authority is in their parliamentary parties to
communicate with the speaker, Lok Sabha in relation to the anti-defection law.
During the inspection, I could not locate the letters of the following
political parties about who their authorities are to communicate with the
speaker for the purpose of the anti-defection Rules: Indian National Congress,
TDP, TRS, CPI-M, JD(S), All India Trinamool Congress, AIADMK, Samajwadi Party,
AAP, J&KPDP, RLSP, INLD, and JMM. I did not seek copies of the list of MPs
and the party Constitutions as these are available online and it would have
wasted the time and resources of the Lok Sabha Sectt.
2) Of the
parliamentary parties that have more than one MP in the 16th Lok Sabha, I could
not locate the replies of the following parliamentary parties sent to the
secretariat containing their list of MPs, authorities to communicate with
Speaker for the the purpose of anti-defection Rules and a copy of the party
Constitution: TDP, TRS, CPI-M, All India Trinamool Congress, AIADMK, DMK, SP,
J&KPDP, RLSP, INLD and JMM. AAP has only sent a list of its MPs in the Lok
Sabha but none of the other required details. The Sectt.'s officials told me
that they send reminders regularly to the non-compliant political parties.
However, as I had not asked for copies of such letters in my RTI application, they did not show them to me.
These RTI
interventions put a question mark on the freedom of MPs to act in Parliament
against their party's diktat. They also reveal how several prominent political
parties have not submitted information to the Lok Sabha secretariat that they
are legally required to provide under the anti-defection law despite repeated
reminders. The reasons for this non-compliance are best known to the
parliamentary parties themselves.
State
legislators are also empowered to vote against the party diktat
The
anti-defection law contained in the Tenth Schedule applies to State
Legislatures as well. I request readers to make use of RTI to find out whether
MLAs have ever voted against the party diktat in the State Legislatures. As
several State Legislatures do not even have official websites, it is not
possible to find out without RTI interventions whether these Legislatures have
even made Rules for implementing the anti-defection provisions of the
Constitution. However citizens have the right to know how whether their elected
representatives have ever made use of the exception to the anti-defection law
to vote against the party's whip. Readers may use the template of the RTI
application contained in the attachments with suitable adaptation for their
interventions.
As the Tenth
Schedule of the Constitution defines a "Legislature Party", all
legislature parties become “authorities or bodies established under the
Constitution”. So in my humble opinion, by logical extension they become
“public authorities” under the RTI Act. So readers in India might like to seek
information from them directly.
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