In the large scheme of things – quite large, considering we live in the biggest ever democracy in the history of the world; the value of a vote in India is diminished significantly. Much like inflation to currency. The Constitution, rather generously, currently provides universal suffrage at the age of 18, irrespective of religion or gender. Our country, however, has a special conundrum in terms of a citizen’s vote. The conundrum arises whether there is any need in voting at all. The foundation for this conundrum lies not in any nihilistic argument about the inherent effect, if any, of voting, but rather, a disingenuous amendment to the Constitution known as the 10th Schedule inserted in 1985 by the Rajiv Gandhi Government via the 52nd Amendment. Popularly known as the Anti-Defection Law – this law ostensibly was drafted to prevent horse-trading, where Members of Parliament (MP) changed parties as freely as they change stances on issues.
The amendment states if an MP either voluntarily gives up their membership or votes contrary to the directions of his political party, he/she shall lose their membership. So much for a vote. The true effect of this law is pernicious. If the idea was to make a legislator subservient to the literal whip of a chief on how to exercise his vote, why elect him at all? Surely, the public exchequer can be spared lakhs of rupees by replacing these ‘bound by the whip’ MPs with robots that press yes/no when the chief whip allows them to? Isn’t automation the future?
In a world captivated by efficiency this just reduces the middleman. In the US, there is a big debate on gerrymandering and voter IDs, which in the perspective of some, causes voter suppression especially towards minorities. In India, the voter suppression is much more subtle yet ruthlessly direct.
As if this was not enough, this Constitutional amendment extends to state assemblies as well.
What Does The Court Say?
In their infinite wisdom, the Supreme Court ruled that this Schedule is not violative of the free will of a legislator. Interestingly, in the same judgement, the court sought to remove the exemption against itself by granting itself the power of judicial review under the anti-defection law. The court interfering in the procedural, and some might argue – political matters of the legislature is something that is quite rare in democracies. The Supreme Court was previously barred from interfering into matters of the Parliament. Very kindly, it decided that it should not be. The courts have also widely interpreted the meaning of the term ‘voluntarily giving up their membership.’
The courts, whether they can judicially review the order of the Speaker/Chairman, have ruled that somehow, the anti-defection law does not impinge upon the freedom of speech glaringly laid down in Article 105. This is a fundamental disagreement I have with the judgement. How does a legislator who, cannot go against the party whip or do anything under the scope of ‘voluntarily giving up membership’ – which includes being present on the stage of a rally, outside the Parliament, denouncing a particular act of your party, still retain free speech? In the view of the Court – do legislators not have the ability to criticise their party or vote against their party? Is it axiomatic of legislators, that, they shall always be 100% behind their party on all issues till the end of time? Never disagreeing once?
The freedom of speech is the freedom to differ. Sometimes, vigorously. Especially, with those you consider allies. The Court observed that the right to freedom of speech is not absolute and is subject to restrictions within the provisions of the Constitution. The particular provision itself, must be inspected. The Court should take a hard look at the effects of this Schedule once again.
The Way Forward
Next time, as inevitably there will be with the general elections near the horizon, a conversation goes on about voting and the super-amazing-visionary-intellectual, as they already are, make the point that he/she votes on the basis of the MP in their area instead of the party; inform the super-amazing-visionary-intellectual that it does not matter who gets elected. The choice does not matter. Certainly, the vote to elect them will not matter. Everyone must vote on the basis of the party because that is what matters. Everyone will have to bow toward the invisible hand. In this case, the invisible hand making the thumbs up for ‘yes’ or thumbs down for ‘no’ action, reminiscent of the movie Gladiator. The solution seems a mixed balance of both – recognise that legislators are mature enough to decide matters for their own. Remove the aspect of disqualification due to voting against the party from the schedule. The people then might vote on the basis of the candidate.
The criticism to this view would be that legislators can raise issues through various Parliamentary mechanisms at their disposal and introduce private member bills. Granted, there are legitimate devices, from which, MPs can raise a matter, and certainly, I would be the first to admit that incredibly enough, the Parliamentary Standing Committees do a significantly commendable job in producing comprehensively decisive reports. They hold the Government to account surprisingly well. What one could surmise from that argument is that as long as the process of holding the Government to account is good, the ultimate way, that is – voting, of holding the Government can be bad, or non-existent. Both can co-exist. More importantly, to take a step back, the primary objective of a legislator is to legislate i.e. make laws. The making of laws is exercised by consultation, deliberation, scrutiny and voting. The power to make laws is either in drafting private member bills, which never get passed, or voting on Government bills. If the latter, is subjected to provisions in the Constitution, especially as excessively as this, then law-making itself is distorted and deformed.
In the UK, the Conservative Party, currently in Government, was the first Government in modern British history to be held in contempt of Parliament. No points for figuring out that a level of cross-party voting did take place; that too, on an issue (parliamentary scrutiny) that was generally, publicly agreed was exigent. This was an example of putting country before party. In India, such a scenario is impossible and gets you disqualified from the Parliament. There are few voters, unless hyper-partisan, who agree with the political party they voted for, on all issues, which is why parties talk about ‘inner-party democracy’ and being a visible ‘broad-church of opinions.’ The candidate, someone who is elected on a mix of the party platform and their own electoral might, perhaps, could be a stronger option, keeping in accordance with the representative model of democracy that we chose. Edmund Burke crisply concluded this:
“If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion,”
The finality in India precedes the discussion.
The voters, first-time and others, should look towards voting on the basis of the party, unless this Schedule is amended. The question is not about a particular candidate, but rather, the particular symbol. I do not fully admit that the vote is a wasted vote. The integral part or point of voting to have a say, to elect your representative to the highest law-making body, to ensure that he voices your concerns, is defeated without the ability to vote contrarily to that of the party.
India must look at this legislative reform as the building block towards becoming a stronger, more mature democracy. Presently, we join a not so enviable list of Bangladesh, Zimbabwe, Sierra Leone, Guyana and Pakistan in countries who have a stringent anti-defection law. I hope this changes.