Liberate the Legislator

The Hindu, April 30, 2016

Manish Tewari*

The Constitution (Fifty-second Amendment) Act, 1985 added the Tenth Schedule to the Indian Constitution to curb the growing tendency of political defections by parliamentarians and legislators from one party to another after elections. The opening lines of the statement of objects and reasons of the said Bill described this disconcerting phenomenon succinctly: ?The evil of political defections has been a matter of political concern. If it is not combated it is likely to undermine the very foundations of our democracy and the principles that sustain it.? Members of Parliament and State legislatures are liable for disqualification if they leave the political party on whose symbol they got elected and join another, or violate the party whip to vote a certain way in the House.

Raising the defection bar

The original Tenth Schedule, however, failed to take into account the ingenuity of immorality that bedevilled some of the eminences that adorned our legislatures. While penalising individual acts of defection, it recognised the principle of splits whereby if one-third of the members of a legislative party broke away and formed a separate group or joined another political party, they could continue as members of the legislature.

Setting the one-third bar was explained in paragraph three of the Tenth Schedule in terms of ?honest dissent? ? that is, a critical mass of numbers would be swayed not by monetary considerations or the perks of office but by deep ideological or policy differences. In reality, individual defections turned into a got converted into a mass-scale malady.

The National Democratic Alliance government of Atal Bihari Vajpayee sought to address this aberration through the Constitution (Ninety-first Amendment) Act, 2003. It omitted paragraph three from the Tenth Schedule that allowed one-third of the parliamentarians/legislators to split from their parent party. However, it left paragraph four in place, which allows two-thirds of the members of a parliamentary/legislative party to merge with an existing political party or form a new political party. Essentially what this constitutional amendment did was raise the wholesale defection bar from one-third to two-thirds.

However, thirty-one years after the 1985 law, perhaps the time has come to assess as to how this statute-imposed morality squares up against a legislator?s right to vote according to his conscience, convictions, common sense and constituency concerns.

Has the Tenth Schedule not altered the fundamental character of the Westminster model of parliamentary democracy whereby legislators, rather than articulating the predilections and priorities of the territorial constituency that they represent, have become but virtual hostages of a whip-driven tyranny? It is the political platform that selects a person to run that now exercises hegemony over the contours of legislation and policy formulation rather than the little chap who stood in the queue on a hot scorching summer day to press that elect button on an electronic voting machine.

Did the framers of the Indian Constitution, when they chose the universal adult suffrage paradigm, contemplate that the system would be upended whereby choice would be with an individual elector but legislative power would reside in a political party? Viewed from this perspective, is the Tenth Schedule not in violation of the fundamental tenets of the Constitution if not the basic structure doctrine?

Tyranny of the party line

Lawmaking in India, far from being a consultative and transparent process that takes all stakeholders on board, essentially remains a bureaucratic function. On top of it is the party whip, which directs its members which way to vote practically on each and every bill. This enforced adherence to the party line means that a member invariably ends up voting for a bill if he/she is on the Treasury benches and against a bill if he/she is in the Opposition, with the odd spectacle of parliamentarians sometimes voting against a legislative instrument which they had supported previously, depending on whether their party occupies the Opposition or Treasury benches.

This has the effect of disincentivising lawmakers from seriously thinking, researching or even rifling for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters. This, when legislation is the principal function of Parliament. The problem becomes heightened as Indian laws do not come with a sunset clause. If a bad law is enacted, it would remain on the statute books for at least a century if not more.

An unfortunate trend that has recently manifested itself is the use of House majorities to get even Private Members? Bills defeated at the introduction stage. It restricts whatever little space individual members have left for legislative activity. The argument of the establishment (the collective of political parties) that standing committees of Parliament serve that very function doesn?t hold, because an MP only serves on one standing committee and the practical possibility of getting onto even one more committee is almost non-existent.

Empowering the legislator

All this needs to change so that the empowerment of the individual can coexist with the imperatives of political stability and public probity. Some years back I had introduced a Private Member?s Bill entitled the Constitution (Amendment) Bill, 2010 (Amendment to the 10th Schedule) that lapsed, without a discussion, on my joining the government in 2012. The core provisions of the Bill envisaged that whips be issued only for those legislative items that threaten the stability of government. It would perhaps be instructive to reproduce the salient aspects of the Statement of Objects and Reasons of that lapsed bill: ?After quarter of a century of the enactment of the Tenth Schedule, it needs certain adaptations and further strengthening so as to be of greater relevance to our democratic process today. The disqualification of a member of a House should be only on the grounds that if he votes or abstains from voting in the House with regard to a Confidence Motion, No-confidence Motion, Adjournment Motion, Money Bill or financial matters contrary to the direction issued in this behalf by the party to which he belongs to and in no other case.?

The operative portion of the Bill stated: ?A person shall cease to be a member if he votes or abstains from voting in such House with regard to a Motion expressing confidence or want of confidence in the Council of Ministers, Motion for an adjournment of the business of the House, Motion in respect of financial matters as enumerated in Articles 113 to 116 (both inclusive) and Articles 203 to 206 (both inclusive), a Money Bill, 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.?

This little tweak restricting the rigours of the whip would free up the legislative space and ensure that every government strives not only for cross-party consensus on legislation but reaches out to individual lawmakers rather than just their leaderships, deepening participatory lawmaking in the process.

*Lawyer and former Union Minister, belongs to the Congress party

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