“Well, we cannot vote according to our conscience. There is the Party Whip. God save us from this party system.”Mahboob Bahadur in the Constituent Assembly on 08.11.1948 while criticising the adoption of British Parliamentary Executive system.
Recently, there has been a Constitutional Crisis which has occurred in Rajasthan. Deputy CM Sachin Pilot and along with others have raised “genuine concerns” with Chief Minister Gehlot and his leadership. Subsequently, the Pilot camp went to Delhi and the Chief Whip of the Congress party called Legislative party meetings on 13.07.2020 and 14.07.2020 with “no agenda”. Both of them were not attended by the Pilot camp. Instead of that, the Chief Whip filed complaint under para 2(1)(a) of 10th Schedule of the Indian Constitution for defiance of the whip. Then, the Speaker of the House issues show-cause notice to Pilot Camp and sought explanations within 2 days. Now, the question arises, who is a whip and what are the roles of the whip? Whether whip applies for actions expected out of members outside the House as well?
“Whip”: Origins, Contemporary Relevance and Roles
The office of Whip is a purely British Institution and there is a saying that “Parliament without a Whip’s office is like a city without sewerage.” The streamlined and coherent running of the Parliamentary machine hinges largely upon the Whips. In the Parliamentary form of Government, the Whips who are chosen from the Political Party in power and opposition formulate vital links in the internal Organisation of political parties inside the Parliament. They are principal office-bearers of the parties in Parliament – basically disciplinarians. According to Dr Radha Kumud Mookerji, the working of Buddhist Sangha shows that there existed the whip who was called “Ganapuraka”.
“To make a House and to keep a House” are said to be the other important functions of Government Whips. “To keep a House”, says Ivor Bulmer Thomas, “is to ensure that there is always sufficient attendance of members to form a quorum and more particularly to give support to their own chosen speakers.”
In India, The Parliament has passed on Act known as the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998. The Minister of Parliamentary Affairs is the “Chief Whip of Government”. He is tête-à-tête accountable to the Leader of the House. In respect of State Assemblies, “Chief Whip” is defined under Salary Allowances of the Chief Whip in the Legislative Assembly of the National Capital Territory of Delhi Act, 2003 as “Chief Whip in relation to the Legislative Assembly of NCT of Delhi means that MLA who is, for the time being, declared by the majority party to be the Chief Whip in that House of the party forming the Government and recognized as such by the Speaker of the Legislative Assembly.” His duties involve: [1.] advising the Government on Parliamentary business and, [2.] to maintain a close liaison with the Ministers concerning parliamentary business affecting their Departments. There are other multifarious functions of the Whip such as supplying the list of speakers on a particular bill, assist members in the general interest of the party, attend meetings of Business Advisory Committee, finalise government’s business, decide when the session will commence and many other roles.
But after 52nd Amendment to the Constitution, which introduced the Schedule X [to curb political defections –“unethical political defections” constituted “a canker eating into vitals of democracy”], the role of the Whip became somewhat easier. Under the Schedule X, a legislator who voluntarily gives up the membership of the Part [and] legislators who violate their party’s whip stand to lose their place in Parliament or State Assemblies. Much of the rationale for such law – indicated by the Parliamentary Debates that went into its framing – seems to have been the prevention of horse-trading of MPs and MLAs. But the scope of Schedule X is broader than that since it does not just prohibit legislators from voting against their party during a no-confidence vote. Rather, it also seeks to forbid them from voting against the party line on any legislative matter where a whip is issued [as happened in the Rajasthan Assembly case – where the Pilot camp didn’t follow the issued Whip]. In the case of Rajendra Singh Rana v. Swami Prasad Maurya, it was held by the Hon’ble Supreme Court that:
“In the case of defiance of a whip, the party concerned is given an option of either condoning the defiance or seeking disqualification of the member concerned…. the decision to condone, if taken, must be in 15 days.”
India along with Guyana, Pakistan, Bangladesh and Zimbabwe is among a few states which bind the legislators to their political parties in this way.
The MP/MLAs occupy the specific perspective of their constituents [from where they are elected] and share a passionate link to their cause. And yet, their advocacy is rooted in a higher commitment to the common good that allows them the ability to distance themselves from their constituents’ partial perspectives. This allows them to subordinate the claims of their electors to the demands of ‘reason, justice and the good of the whole’ during deliberation in parliament. But herein, there is a conundrum between freedom of speech of a legislator and issuance of the whip—does issuance of whip violate the freedom of speech granted to every legislator in this country [as per Article 105 and Article 194]? Although this “freedom” is “subject to the provisions of the Constitution”, the question remains about the extent of application of Whip. That is, whether Whip applies for actions expected out of members outside the House as well.
Application of Whip outside the House: Suggestions
This is one of the seminal questions which arise from the Rajasthan Constitutional Crisis and has also been pointed out by the Rajasthan High Court in its order dated 24.07.2020 that are members expected to act accordingly to whips outside the House as well? In my opinion, the High Court is wrong in framing this question as political questions must be answered in political forums and not be confined to quibbling in courts.
In the Parliament or State Assembly, Members have to go by their party whips, and therefore a decision of a Parliament is always necessarily a decision of the majority party. There is no objection in the strengthening of the political parties so that the will of Majority prevails in a political party as when a legislator joins a party and succeed on that ticket, he renders himself subject to the discipline and control of the party. Issuance of the Whip is not governed by any law [neither the Rules framed under Tenth Schedule nor the Rules of Procedure and Conduct of Business] But should that rule must apply outside the House as well and bind the legislator on every occasion? On such an occasion if a Whip is issued outside the House, then it leaves no room for dissent and deliberation. It would be appropriate if it is provided in the rules of Parliament or Assembly that a Whip shall be issued only on occasions when the voting is likely to affect the existence or continuance of the government and not on all sundry occasions [be it outside the house or inside].
On this Shri Mahavir Tyagi said in the Constituent Assembly on 02.08.1949 that “I do not take its [Congress party’s] Whip as a mandatory Whip and I do not obey it unless I am myself convinced of it.” Although, he agreed that a legislator must follow the whip inside the House and differentiated that from voting in Constituent Assembly, but didn’t comment about a scenario where a legislator is expected to act according to Whip outside the house or not. The Law Commission of India 170th Report on Reform of the Electoral Laws (May 1999) recommended that,
“It is desirable that the whip is issued only when the voting in the House affects the continuance of the government and not on every occasion. Such a course would safeguard both the part discipline and the freedom of speech and expression of the members.” (Para 9.14)
Coming back to Rajasthan Crisis, if there is any difference of opinion, then it must be ventilated within the party itself and the Pilot camp may fight within the party to have his point of view adopted by the Party. The issuance of Whip, outside the house, on such trivial issues [when there is a disagreement between Chief Minister and Deputy Chief Minister] must not be sustained as it violates the freedom of speech of a legislator which is ensured under Article 194 and Article 19(1)(a) as well. The Courts must stay away from political thickets and must not set a precedent in this issue. They must be reminded about Portia’s warning in The Merchant of Venice: “Twill be recorded for a precedent. And many an error by the same example/Will rush into the state. It cannot be.”