Misuse of the office of Speaker by the ruling party

[This is a post by Surabhi SrivastavaContributing Editor]


Presently, we have come across the situations where the members of the legislative assembly are being disqualified or being given the notice to explain as to why they shouldn’t be disqualified from Legislative assembly. In this scenario, we need to understand first, the power of Speaker with regard to disqualification.

If we trace the history from post-independence there are multiple instances where MPs or MLAs have switched their party after getting elected. The most famous incident was from Haryana in 1967 where extreme political horse-trading, counter horse-trading and counter-counter horse-trading took place. Independent MLA Gayaram switched four different political parties in a span of 15 days. After such an incident, safeguards were placed in the constitution to keep a check on the elected members of the Parliament and Legislative Assembly against their misconduct.

 Constitutional Amendment

Anti-defection law was inserted in 10th schedule of the constitution by 52nd Amendment Act of 1985 to disqualify any member of the Parliament or Legislative Assembly from switching the political party from which they have been elected.

Speaker has vast power under the constitution to disqualify any member of the assembly. Being the presiding officer of the house any petition for disqualification is to be placed before him. Since 2003 the political parties have started to misuse the powers of the speaker’s office for disqualifying the members of the assembly. We all know that a speaker is to be elected by the members of the assembly but it’s an unfortunate truth that the party in the majority selects any person amongst themselves as a speaker who will remain biased during the proceedings of the assembly in their favour.

Judicial Review

Initially, any decision under the anti-defection law was not subjected to the judicial review but in 1993 through the case of Kihoto Hollohan vs Zachillhu And Others, the Supreme Court declared this provision as unconstitutional to the extent that, any decision of disqualification of any member of the assembly is subject to judicial review and can be challenged before the Supreme Court and High Court as a judicial review- part of ‘Basic structure’.

Misuse of Office of the Speaker and its Power

In 2019, a political crisis came up in Karnataka assembly where after election 17 MLAs of Congress they gave their resignation to K.R. Ramesh Kumar who was Speaker of the house. It was just before when congress was about to give confidence motion to the Speaker for making a government in the state.  Being loyalist to congress party K.R. Ramesh Kumar while passing the order of disqualifying these MLAs, restricted them to contesting election until the term of the current assembly ends in 2023.

Affected MLAs approached the Court of Law against the order of the Speaker being unconstitutional and beyond the power of the House of Speaker. A three judges’ bench of Supreme Court in Shrimanth Balasaheb Patil vs Honble Speaker Karnataka upheld the order of the Speaker disqualifying 15 MLAs from Congress and JD(S) but struck out the period of disqualification. Supreme Court held that the speaker in the exercise of powers does not have the power to indicate the period for which a person is barred from contesting an election. This could be said as one of the defects of the defection law as there is no penalty imposed to the defecting member of the House – so there is no deterrence whatsoever.

Court further held that the Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed is subject to judicial review before this Court under Article 32 of the Constitution.

Court further observed that there is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse-trading and corrupt practices associated with defection and change of loyalty for the lure of office or wrong reasons have not abated. Thereby, the citizens are denied stable governments.

Recently in July’ 2020, a similar issue came up in the State of  Rajasthan where show cause notice was being issued by the Assembly Speaker CP Joshi after the Congress complained that Deputy Chief Minister Sachin Pilot and 18 MLAs had disobeyed the whip of the party to attend two Congress Legislature Party meetings held at CM House. 

Sachin Pilot and 18 other MLAs moved to the Hon’ble High Court challenging legality and constitutional validity of such notice as such a party whip applies only when the assembly is in session. Hon’ble High Court vide its order requested the assembly speaker not to ake any further action on show-cause notices to the 19 legislators and to maintain “Status Quo” until 24th July 2020.

Felt aggrieved by this order Rajasthan Speaker moved to the Supreme Court challenged this order of “Status Quo” on the basis of the judiciary was ever expected” to intervene in such matters resulting in “constitutional impasse”. As per the Constitution bench, the Judiciary cannot interfere in the discharge of the duty of the speaker. However, it was contended that only notice was issued to the MLAs. The decision on the matter was yet to be taken. Unfortunate that the elected representatives are circumventing through Judiciary.  Three judges bench led by Justices Arun Mishra, B R Gavai and Krishna Murari while refusing to grant stay against the order of the High Court observed that “serious questions related to democracy” are involved in the matter.

Court further observed that the “voice of dissent cannot be suppressed in a democracy”. They had all been elected by the people and being their representative they have all the right to raise their voice and their voices cannot be suppressed. If some members of the political party do not agree with the agenda of the party, it will not be called for the disqualification of those members merely because they do not agree with the party.

Thus, to conclude, we can vividly witness how the powers of the speaker are being misused or being used in the most biased way. The position of the speaker is a constitutional post whose sanctity deserves to be maintained, however, in the above-mentioned instances the picture is truly disappointing. In simpler terms, political games put a wrong mark on the provisions of the constitution, which as a citizen makes us feel like the construction of fraud on the Constitution.

Keshav Singh’s Case-I: A pamphlet which led to a Constitutional Crisis

In this post, I would be discussing the facts and incidents which led to paralysation of administrative machinery and a constitutional crisis.  Interestingly, due to these facts and circumstances, the largest bench of 28 judges was constituted—even more than the 13-judges bench in the landmark case of Kesavananda Bharti v. the State of Kerala.

Keshav Singh, resident of Gorakhpur (U.P.) and a worker of an opposition party [Socialist Party] published a pamphlet along with his two colleagues—titled Shri Narsingh Pandey ke Kale Karnamon ka Bhanda-Fod. In that pamphlet, they alleged that Narsingh Pandey, Congress party’s MLA, was corrupt. The pamphlet was distributed in Gorakhpur and the vicinity of the legislative assembly in Lucknow. The Congress party MLAs including Pandey were offended by the act, hence, they complained to the Speaker that the pamphlet ‘breached the rights and immunities enjoyed by the assembly and its members’. Keshav Singh and his two colleagues were summoned to appear before the House in Lucknow to receive a reprimand.

While the other two colleagues accepted a reprimand on 19th February 1964, Keshav Singh failed to appear before the House citing ‘lack of funds’ to travel from Gorakhpur to Lucknow. Subsequently, the Assembly ordered to arrest Singh and brought him to the assembly on 14th March. After he arrived at the assembly, he was ‘expected’ to be reprimanded just like his other colleagues, but he had other ideas. He refused to answer when the speaker of the assembly repeatedly asked him to confirm his name. He turned his back towards the Speaker and stood silently after every question was posed to him. Another incident happened which worsened the matter was that- Singh had written wherein he protested against the reprimand as statements in the pamphlet were true, and condemned the warrant of his arrest as ‘Nadirshahi’ (tyrannical). Then, the first woman Chief Minister Sucheta Kripalani moved a motion in the assembly for Singh to be imprisoned for 7 days and he was sent to prison. Until now, it was just gossip of the town.

On the 6th day of his imprisonment, an advocate filed a petition on behalf of Singh at the Allahabad High Court, seeking immediate release. It was contended that Natural justice principles were not followed as Singh was not allowed to defend himself and assembly lacked the jurisdiction to commit him to prison. The matter was placed before Justices Nasirullah Beg and G.D. Sehgal at 2 p.m. wherein Singh was represented by Advocate Solomon and assistant advocate general, K.N. Kapur, appeared on behalf of the state government. Kapur sought a pass over and requested the matter to be placed at 3 pm. However, at around 3 pm, when the case was called Kapur was not present, due to some reasons [whether deliberate or not—we never know]. Solomon argued the case and based on the arguments and facts, the High Court ordered that Singh to be released on bail subject to a condition that Singh should be present in court at every future hearing.

After this usual course would have been that state government should have filed an affidavit, but the Speaker, Madan Mohan Varma, a lawyer by profession thought this as a violation of the doctrine of separation of power and he had read the Mayne’s Parliamentary Practices– an authoritative book on Parliamentary procedures and practices. In his view, the order of the High Court “undermined the assembly’s exclusive authority to address a breach of its own privilege”. Surprisingly, after two days of the order, the House passed a resolution with a majority that Singh, Solomon and two High Court judges be bought “in custody” before the assembly to explain their acts. Imagine a judge of a constitutional court being summoned before the legislative house to justify his acts in the judicial capacity. Isn’t this violation of Article 211 which states that “[N]o discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties”?

From a mere political issue, the whole incident became a clash between constitutional institutions. It became more of a power game between the Hon’ble High Court and the Hon’ble Assembly. This was unprecedented and the judges of the High Court had no clue how to react to this summon of the Assembly. According to Senior Advocate Shanti Bhushan,

Justice Beg “was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court”.

There arose a conundrum between saving the honour of the Court and contempt of the Assembly. As per Chintan Chandrachud, “if the judges agreed to appear before the assembly, the episode would risk undermining the independence of the judiciary. On the other hand, if they appeared and offered a robust defence, the assembly might be left with no choice but to refrain from further action, lest it criticised for persecuting well-intentioned judges”. The judges to save their honour and the honour of the Allahabad High Court filed petitions before the High Court stating that assembly’s resolution violated Article 211 and they were represented by Advocate Jagdish Swarup. There was a conundrum about the bench allocation because what if the judges which decide the matter would also suffer similar consequences as faced by the petitioner-judges. Later Advocate Swarup offered his suggestion that all the judges of the high court (except Justices Beg and Sehgal) should sit together to hear the matter. This was a symbolic gesture and for the first time in the history of the Indian legal system, 28 judges sat for deciding the case. The rationale behind this unprecedented action was that securing custody of two judges was one thing, attempting to do so for every judge of the high court was quite another.

The judges sat in two rows which were also unprecedented and unseen. They admitted the petition and restrained the government from securing the execution of arrest warrants against the two judges. Later, even the assembly withdrew the arrest warrants against the judges and Solomon. This led to a lot of uncertainty and the police were rather confused about whether to arrest or not. As Chintan Chandrachud says,

If the police escorted the two judges and Solomon to the assembly, they would be complying with the resolution of the assembly but possibly in contempt of court. If they refused to do so, the police would be complying with the court’s order but defying the resolution of the assembly.

By this time there was a hassle in New Delhi as the news reached the Capital. The CM Sucheta Kriplani apprised the PM Nehru of the situation. Then, it was decided that a presidential reference shall be made to the President to “enable the court to rule decisively on the authority of the assembly on the one hand, and the courts on the other, to determine the scope of the privileges of the assembly”. The issue could have been decided by the Parliament or the assembly, but Nehru chose to refer it to the Supreme Court for further adjudication and ‘final decision’. A seven-judge bench was constituted which was headed by the Chief Justice Gajendragadkar in the Special reference no. 1 of 1964. [The law laid down by the Court, in this case, will be discussed in next posts on this blog]

In conclusion, an observation made by Chintan Chandrachud in this regard is worth mentioning,

“This case is worth remembering – if not nothing else, to demonstrate how easily constitutional institutions can turn against one another and, equally, how difficult problems are best solved through statesmanship rather than brinksmanship.”

[Note: I would like to thank Chintan Chandrachud for his insightful book “The Cases that India Forgot“]

Contempt of Court: Analysis of the Jurisdiction of an “infallible” Court

In the previous post, we discussed all the facts relevant to Prashant Bhushan’s Contempt Case—In this post, I will analyse the Supreme Court’s jurisdiction of Contempt and try to make an objective effort to draw a line between free speech and the law of contempt as in the recent times’ judiciary has exercised its power of contempt which led to a burning debate. The premise for the law of contempt of Court stems from the accountability of Courts. Although the law of contempt has originated from English law, it is not entirely an imported concept.  The age-old systems to protect courts or assemblies (sabhas) point to the indigenous development of contempt law. Kautilya wrote in Arthashastra that, “any person who insults the King, betrays the King’s council, makes evil attempts against the King… shall have his tongue cut off”. Although it is not similar to the modern-day law of contempt but it shows that there was an attempt at protecting the sanctity of the images of justice.

Supreme Court: Court of record and power to punish for contempt of itself

Under in the Indian Constitution, Article 129 states that “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” The provision defines the position of the Supreme Court. Dr B.R. Ambedkar explained the meaning of “Court of Record” in the Constituent Assembly on 27.05.1949 as, “A court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court.

And, the power of contempt follows from the fact that the Supreme Court is a court of record, as the High Courts. The provisions of contempt were included in the Constitution itself because, in England, this power is largely derived from Common Law and as we have no such thing as Common Law in India, we felt it better to state the whole position in the statute itself. The power of contempt is extraordinary and is exercised only to uphold the majesty of the judicial system. On the question of contempt, the Supreme Court has a summary jurisdiction to punish contempt of its authority. In the case of Om Prakash Jaiswal v. DK Mittal (2000), the Supreme Court emphasised the need for the concept of contempt as follows:

“Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly is the source of existence of civilisation in society. The writ issued by the Court must be obeyed…..Any act or omission which undermines the dignity of the Court is therefore viewed with concern by the society and the Court treats it as an obligation to zealously guard against any onslaught on its dignity.”

The logic behind the contempt jurisdiction is that if the confidence in judiciary shakes, the due administration of justice suffers. But is there any definite meaning of contempt? The Contempt of Courts Act, 1971 defines criminal contempt as that which ‘scandalizes the court’ or ‘prejudices judicial proceedings’ without providing any explanation of these key terms. An attempt was made in Jaswant Singh’s case and it was held that the offence of criminal contempt is committed when a court is scandalised by casting “unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice”. This is an extremely wide definition and it should not be read apart from the goals set forth by the Founding fathers under the Constitutional provisions. Even though uncertainty makes a law flexible but we cannot ignore the evils that come with this.

Also, according to Justice Mukherjea in a Brahma Prakash case, there must be two primary considerations when dealing with contempt of court amounting to “scandalisation of the court” – Firstly, whether the act is within the limits of fair and reasonable criticism, and secondly,  whether the act is a mere libel or defamatory in nature or contempt of court and if, it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice, it is not proper to proceed by way of contempt. The accused must be held guilty only after these two considerations are adjudicated upon. Furthermore, in an interesting case where the accused- U.K. Krishna Menon charged the judiciary as “instrument of oppression”, and then he raised an interesting three-fold contention in his defence that: [a] the law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression under Article 19(1)(a); [b] the intention of the contemnor in making his statement should be examined in the light of the political views as he was at lastly to put them before people and, [c] Lastly the harm done to the court by his statement must be apparent. Although it was rejected by the Court and he was held guilty for stating that judges are “guided and dominated by class hatred” and favours “rich against the poor” as these words weakens the authority of Courts, and have the effect of lowering the prestige of judges and courts in the eyes of the people.  Here, two questions arise: what does the court aim to protect from this law and what image of justice the Court seeks to preserve? A definite answer must come from the Apex Court.

Another question which arises is what are the “standards” of criticisms? According to Perspective Publications judgment, a fair, reasonable, temperate and legitimate criticism of the Judiciary or the conduct of a Judge in his judicial capacity is permissible – but what about the tweet/comment of lawyer-activist Bhushan on the CJI – isn’t that a fact that the Hon’ble CJI was “riding” a Harley Davidson without a mask? Should the reasonable restriction of contempt of court overshadow the freedom of speech and expression? Herein a quote by Justice Felix Frankfurter is relevant:

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions…..therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”

A way forward

When should the power of contempt be exercised by the Courts? The courts must remember that “Speech is duty and silence cowardice”. The power of contempt is to be availed to aid in the administration of justice and not to shut out voices that solicit accountability from the Court for its fallacy of omissions and commissions. To suppress constructive criticism- or demand for accountability- is not and cannot be a ‘reasonable restriction’. As Prashant Bhushan replied in his affidavit before the Supreme Court, “power of contempt cannot be initiated “into service to stifle bonafide criticism” from citizens who are well-informed about the omissions and commissions of the Supreme Court”. The power must be exercised cautiously, wisely and with circumspection. The Constitutional Courts must protect our free speech even “against judicial umbrage”. Lord Atkin has observed, “Justice is not cloistered virtue”, hence, every judgment and conduct of judges must be open to public discussions and criticisms as they hold constitutional trust, confidence and faith of ‘The People’.

Further, Justice Brenan has observed in Sullivan’s case, “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” Justices should not enter into public or political controversy instead they should rely on their conduct itself “to be its own vindication” and their lordships must have broad shoulders when someone criticises the Courts with an informed opinion.

The Courts must understand that the power of contempt is needed just for the administration of justice and punish those who disobey the order of the courts, not to gain respect. A more relaxed system is something we should strive for – remember post-Skycatcher judgment the British media banner published the photos of judges upside down calling them “You Fools”. Senior Advocate Fali S Nariman asked one of the judges, why they did not initiate contempt against the media, the Court replied it is just an opinion. We do not agree.

In conclusion, it is for us, as citizens, to think whether the court will be able to instil institutional greatness by this flourishing law of contempt- or whether this will lead to, as observed in Barnette’s case, the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”

[Note: I would like to thank the editorial board, Manasi Bhushan and Diksha Dadu for their comments]

Prashant Bhushan’s Contempt Case: Are the Indian Constitutional Courts prone to dissenting remarks made in Social Media against it?

[This is a post by Minnah Elizabeth Abraham, Contributing Editor]

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.” Lord Denning

The controversial case of contempt of court law against lawyer-activist Prashant Bhushan reveals much of the stifling unaddressed claims of the judicial systems as opposed to the rightful exercise of the freedom of speech and expression within the judiciary. The case draws a pricking line between exercise of the fundamental right of speech and expression with freedom of judiciary to maintain its credibility in the larger public interest.

Trotting down the facts, the whole issue was provoked when Prashant Bhushan tweeted firstly, on the Chief Justice of India, quoting

“CJI rides a 50 lakhs motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice.”.

Secondly, the controversy ensued when he yet again tweeted

“When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

Although the Freedom of Speech and Expression in enshrined in Article 19(1)(a) of the Indian Constitution, it is sadly bounded with restrictions under clause 2 of the same Article. In the above controversy, the statements as remarked by Mr Prashant  Bhushan have been claimed to downgrade the Supreme Court of India and judiciary system, attracting the very Contempt of Courts Act, 1971 (“The Act”) calling for his actions as criminal contempt, defined in the 1971 Act, for scandalising remarks against the authority and administration of law. The petitioner’s side (Mr Prashant Bhushan) claims the Act to be unsurprisingly incompatible with the basic structure of Constitution, all the more, perforating the guaranteed freedom of speech expression. However, this is not so, as stated on the other side,

“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution of the supreme court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large.”

The legislature does not provide with a concrete definition of contempt – howsoever Section 2(a) of Contempt of Court Act, 1971 defines contempt of court as civil contempt or criminal contempt: “Civil contempt refers to wilful disobedience to any decree, judgement, direction, writ, order or other proceedings of a court or wilful breach of an undertaking given to a court.

According to Section 2(c) of 1971 ActCriminal contempt – whether by word, spoken or written or by signs or by visible representation or otherwise – of any matter or doing of any other act whatsoever which –

  1. Scandalizes or tends to scandalize or lowers  the authority of any court or
  2. Interferes/Prejudice or tends to interfere with the due course  of any judicial proceeding
  3. Interferes or tends to interfere with or obstruct or tends to obstruct the administration of justice in any other manner

The impugned section renders power to the judicial authorities to routinely misuse the power to punish those of contempt of court for their misdeeds rather than carry forward their duties to uphold the laws of Justice. As noted, there are a high number of contempt cases – civil (96,993) and criminal (583) pending in various HC and SC. As clearly noted, the said section is ambiguous as it does not draw any distinction between criticisms or remarks made in consonance with freedom of speech with that of scandalization against the Court of Law. By going deeper into the case, it only points out, how both the issues are contrasting starkly against each other, for which there is a need to modify the laws of contempt of court without breaching the fundamental rights. The Court of Law, like every institution of an order, should fall back in welcoming public criticisms to deliver and serve in the interest of the general public.

To stir up further controversy, the 2009 pending case of Sterlite company, where Mr Prashant Bhushan accused the headed judge of having held shares in the said company was deferred to be heard in the next hearing scheduled on August 4th, 2020 joined with the recent controversy.

The cynicism in all of this brought forth, where the views of the same bench were pointed concerned hearing a matter of disqualification proceedings initiated against Sachin Pilot and other involved MLAs of Rajasthan, observing “Voice of dissent in a democracy cannot be shut down”. This same constituted bench responded completely in contrast to the voice of dissent raised against the very Court and used the provisions of Contempt of Court Act, 1971 to shut down the ensuing alleged claims against it, with due disregard for the Constitutional Rights.

As stated rightly by Mr Shekhar Gupta, Editor-in-Chief of The Print,Politicians run on political capital. Professions run on professional capital…so the Supreme Court’s capital is its own stature. It’s for the court to decide how fragile that stature is.”

Some concluding remarks

If contempt proceedings are going to be instituted against every tweets and remark against Courts of law, there would not be any room for informed public scrutiny, which holds the very purpose of arriving at right delivery of justice, covering all aspect of public concerning matters. Previously, the SC has been considered liberal with contempt proceedings and has set aside the punishment in the case of Chanchal Manohar Singh vs. High Court of Punjab & Haryana due to irregularities of both sides and other past actions have shown that the Courts of Law has subject to have positively drawn in criticisms in public debates and often have taken in consideration of the public remarks.

The case instituted against Mr Prashant Bhushan, especially when the main issue revolves around the freedom of speech and expression, the presiding bench heading the case has to carefully tread on the public’s faith on the judiciary and choose to uphold the dignity of the judiciary by thoroughly inspecting the essentials of the criminal contempt. The ongoing debate lingers on Bhushan case, covering every aspect of freedom of speech and expression and explore as to what extent does the freely expressed criticism turn to contempt. This imposes immense pressure on the Court of Law to distinguish between criticism and contempt on the part of the Bhushan’s action of freely expressed opinions against the Courts of Law and its adjudicating authorities and whether his tweets unquestionably resorts to scandalising the judicial administration.

[Note: This Article seeks to cover all the facts and bring in the legal standpoints as well as point out the need for Constitutional law to supersede the very Act that violates the guaranteed Freedom of Speech & Expression.]

Constitutional Crisis in Rajasthan: Analysing the role of Whip

“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.