Can India strike a balance between party cohesion and individual opinion of the parliamentarian?

On 17^th July 2019, The Supreme Court of India was put on the horns of a dilemma when the Karnataka crisis required it to adjudicate on a convention which necessarily fell within the contours of The Political Thicket. The convention in question was the fact that the Courts generally do not concern themselves with political questions, because that would essentially mean substituting the elected representatives of the people with the unelected judges of the courts. Whereas, on one hand, in keeping up with convention, it refused to interfere with the powers of the Speaker, on the other, it gave the 15 rebel MLAs a free hand to act in contravention of the party whip, until the speaker decided on their disqualification, thus essentially diluting the provisions of Schedule X of the Constitution of India.

The X^th Schedule was brought in to prevent defection and horse-trading which clearly go against the mandate of a democratic setup. To this effect, §2(1)(b) of the Schedule, essentially states that in the direction of the party whip is not adhered to by the parliamentarian, during the time of voting, the said member shall be disqualified on grounds of defection. However, while purporting to keep a check on horse-trading and defection, §2(1)(b) of the X^th schedule has actually increased the cost of corruption in influencing the vote sought while concurrently having stifled the dissent of the individual parliamentarian.

The increase in the cost of corruption is an implication which has been necessarily brought about by the blanket immunity provided to a Member of Parliament under Article 105(2) of the Constitution of India. The legislative intent which led to the incorporation of parliamentary immunity into the Constitution of India was to equip the parliamentarians with the authority to confront the executive for its actions and use Parliament as a forum for expressing the anxieties of the citizens, without the fear of any outside interference. However, The P.V. Narasimha Rao Judgment, substantially expanded the scope of Article 105 of the Constitution of India, to include the offences relating to bribery and conspiracy under Parliamentary Immunity as well. The P.V. Narasimha Rao Judgment, erroneously brought the criminal offences of bribery and conspiracy which have no proximate nexus with the effective functioning of parliament at the same level with offences which might occur in the usual discharge of duties of a parliamentarian, for instance, say, defamation. This essentially means that the absence of penal provisions, in light of Parliamentary Immunities, in-fact does incentivize defection, inasmuch as, it inflates the cost of getting a member to change his/her vote in Parliament.

Schedule X also gives an unfettered and absolute right to political parties to regulate the voting of its parliamentarians. §2(1)(b) of Schedule X is applicable to the Parliamentarians even if they abstain from voting on a particular issue. The murkiness of this issue was highlighted in the case of Kihoto Hollohan v. Zachillhu, where the court laid down a restrictive framework of situations, only under which a Parliamentarian could have been considered to have defected.   However, the said framework broadly included all the aspects on which the political party relied on to come to power. Thus, the Zachillhu Case failed to acknowledge the dichotomy which exists between the umbrella terms mentioned in an election manifesto and the actual legislative acts which are to be carried out in the implementation of the same. This is inherently problematic because, although, it is acknowledged that, it is the mandate of the political party on which elections are contested in India and individual members of Parliament are mostly elected by virtue of their membership of that political party. However, it would unfair to assume that the individual parliamentarian is in consonance with each and every aspect of the party’s mandate which brought it to power. For instance, let us consider a particular political party which relied on the aspect Foreign Direct Investment and setting up of factories in order to come to power in a particular state. However, if the said scheme involves the felling of trees and substantial deforestation, in a particular Parliamentarian’s constituency, and he/she votes against the motion in Parliament, he/she stands a chance of being disqualified according to the provisions of §2(1)(b) of Schedule X.

The changing face of how Indians perceive elections also presents an interesting lacuna here. As of 2019, more than 25% of the Indian voting population voted on basis of the local candidate of their constituency, and studies suggest that this number is bound to inflate in the times to come. Thus, the suppression of the Individual Parliamentarian’s dissent, under §2(1)(b) of Schedule 10, further gets antithetical to the democratic setup of this country, inasmuch as, the provisions clearly give an upper hand to party cohesion, as opposed to the interests of the populace.

It is interesting to note how the United States tackles defection, Inspite of the fact that there are no Anti-Defection legislations in the country. In the case of Bond v. Floyd, The United States Supreme Court brought the rights of Parliamentarians in consonance with the First Amendment Rights of the citizens, while concurrently giving preference to the party cohesion over the voting rights of legislators. This essentially translates to the fact that while the individual legislator is permitted to have and vote against views which may be fundamentally different to his/her own, he/she cannot be disqualified from Parliament for having voted against the motion. The recourse which the parties have, in such a situation, is the suspension of the membership of the said legislator from the political party.

In India too, while party cohesion is important, the interests of the individual parliamentarians cannot be so grossly overlooked especially in light of the fact that the Indian voter is now eventually factoring the individual candidate of his/her constituency over the larger party mandate. The Anti-Defection Laws in India were brought in so that the citizenry was not subject to be governed by those which it never elected. Instead, the laws ended up muzzling dissent and incentivizing horse trading which is intended to prevent in the first place. If India too can strike a balance between party cohesion and individual opinion of the parliamentarian, by adopting the methodology of the United States, this lacuna could be addressed.

A proposed solution to tackle horse-trading and defection in an era post P.V. Narasimha Rao Judgment, would require the government to define a restrictive framework which can encompass offences like bribery, conspiracy et al. which have no nexus with the effective or efficient working of a member in his capacity as a Parliamentarian and which have been the reason for a swayed vote of the Individual Parliamentarian in the House.  The offences coming under this framework, should not be given Parliamentary Immunities under Article 105(2) of The Constitution of India.

The absence of Parliamentary Immunity would thus reduce the rampant horse-trading and defection, as no Parliamentarian would be willing to attract criminal liability for their actions in Parliament. While the correctness of P.V. Narasimha Rao Judgment still remains to be seen in the case of Sita Soren v. Union of India, which is pending before the Supreme Court of India, this restrictive framework, coupled with the methodology of the United States, as mentioned above, could ensure that a vote which has legitimately cast is not hit by the provisions of §2(1)(b), and actual briberies and horse trading, are reduced in Parliament.

Tanishk Goyal is a student at West Bengal National University of Juridical Sciences, Kolkata.