VOICE OF DISSENT: Ejaz Ali (far left) and some of the other suspended members of the Rajya Sabha protesting outside Parliament House

Ejaz Ali’s vehement protest against the Women’s Reservation Bill in the Rajya Sabha ultimately led to his suspension from the upper house. But, for Ali, a former member of Janata Dal (U), it was his “independent status” that allowed him to speak his mind.

“Had I been a member of a party and it had issued a whip to vote in favour of the bill, I don’t think I would have been so vocal,” says Ali. “In a way I was also speaking for a majority of the male members of Parliament (MPs) who were against the bill. But were bound by their party whips,” he says.

A “whip” is a directive issued by a political party to its members to vote according to the party line. The party can report to the presiding officer anybody defying the whip, leading possibly to the expulsion of the member under the Tenth Schedule of the Constitution, also known as the Anti-Defection Law.

The Anti-Defection (Tenth Schedule) Law was introduced in 1985 as the 52nd Amendment to the Constitution after years of debate over the problem of floor crossing in legislative bodies giving rise to the Aaya Ram Gaya Ram phenomenon. The law was amended later in 2003.

But a new amendment proposed by Manish Tewari, Congress spokesperson and Lok Sabha MP, seeks to free the legislators from “unnecessary” whips and allow them to be “creative”.

In the “statement of objects and reasons” Tewari’s private member’s bill, introduced in the Lok Sabha recently, states that “a member shall incur loss of his membership only when 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 any direction issued in this behalf by the party to which he belongs to, and in no other case.”

In fact, the Dinesh Goswami Committee on electoral reforms in 1990 and the Law Commission of India in its 170th Report in 1999 had also suggested that political parties should limit whips to instances only when the government is in danger. “Whether a party is in power or out of power, it uses the whips indiscriminately and MPs are expected to behave like a herd of sheep,” says Ali.

“The Tenth Schedule is a legislative fix for a moral problem. If one has been elected from one party, morality demands that he stand by that party. But in my opinion, the law could be amended to strengthen our democratic credentials even further,” says Tewari.

According to Tewari, if his suggestion is accepted, it would free legislators from following the party’s line on every issue. “A party whip acts as a disincentive for a thinking legislator. By doing away with whips on anything and everything, the members can research on the laws and come up with creative suggestions without fear,” says Tewari. This, he says, would also lessen the “bureaucracy’s grip” when it comes to drafting laws.

The bill has already found supporters in several political parties. “There is no doubt that individual freedom has been compromised by the law. Even genuine voices of dissent and difference have been gagged,” says Shivanand Tiwary, Rajya Sabha MP and spokesperson of the Janata Dal (U). Incidentally, JD (U) was one of the few parties that didn’t issue a whip during the Women’s Reservation Bill debate in the Rajya Sabha.

According to Shivanand Tiwary, the anti-defection law has led to “party dictatorship” over legislators, especially in parties like the Bahujan Samaj Party (BSP) and the Rashtriya Janata Dal (RJD). “Legislators are forced to toe the leadership’s line even when they disagree for fear of invoking the provisions of the Tenth Schedule. I would welcome greater freedom for legislators in the anti-defection law,” says Tiwary.

But others doubt if there would be any change in the political culture even if the amendment is carried out. “An Indian political party can never be internally democratic, as most of them are high command driven, but with the days of two-thirds majority long gone, I think those who want to express dissent have enough freedom to do so outside Parliament,” says Peter Ronald de Souza, director, Indian Institute of Advanced Studies, Shimla. De Souza has written extensively on the anti-defection law.

Tewari’s private member’s bill also proposes to do away with the powers of the party and the Speaker. The bill proposes the inclusion of the words “shall cease to be a member” in place of “shall be disqualified for being a member” under Section 2 of the Tenth Schedule whenever a member defies the party’s whip.

“Currently, a party can remain silent and not report a member even if he or she has voted against its whip. I propose that the burden of proof be on the member who has chosen to defy the party. Until that time let him cease to be a member,” says Tewari.

For instance H.T. Sangliana, former BJP MP who voted against his party’s wish during the 2008 confidence motion against the UPA government and was disqualified by the Speaker under the anti-defection law, says that he was never formally informed about the whip of the party. “It was my word against the party’s and the party’s word prevailed,” he says.

Tewari’s proposed amendment, experts say, would also limit the Speaker’s often partisan role when it comes to disqualifying a member. “Although Speakers are supposed to be neutral, they go by the ruling party’s wish and prolong the process of disqualification. And sometimes the Speakers themselves defect,” says Joseph.

Somnath Chatterjee, former Speaker of the Lok Sabha, speaking at the Conference of Presiding Officers of Legislative Bodies in India in 2008 had, in fact, called for a “special tribunal consisting of people well versed in law or on an authority like the Election Commission” to be set up to decide on the matter of disqualifying members under the anti-defection law.

The last time major changes were made to the Tenth Schedule was in 2003 through the Constitution (Ninety-first) Amendment Act. This amendment did away with the provision of recognising a split or merger in political parties and also barred a disqualified member from holding the office of a minister or in a remunerative political post for the duration of the remaining term or till he is elected again.

These changes were brought in following the National Commission to Review the Working of the Constitution (NCRWC) recommendations in 2002. The NCRWC had also suggested that the vote cast by a defected member to bring down a government should be treated as invalid, but it found no takers.

“The Tenth Schedule has been a good law, but we have to evolve in keeping with the times,” says Tewari. He is not discouraged by the fact that not a single private member's bill has been passed in Parliament since the 1970s. “I am aware of the dismal record, but private member’s bills flag the issues and they stimulate debate. That is very important,” says Tewari.