About Votes Cast At Pistol-Point

Political parties, and the system and conventions that have grown around them are not referred to anywhere in the Constitution. They are of course not illegal for that reason, but we should realize that the Constitution must be protected against any overgrowths and trespasses arising out of this extra-constitutional system and its conventions.

Last week I wrote in the ‘Dear Reader’ column about the proposed Nineteenth Amendment, contending that to use the party whip to get constitutional amendments passed would be wrong. Party organization has come to be accepted no doubt as a useful mechanism in the working of parliamentary democracy. Votes are ordered to be cast in a particular way by the party leadership, and those votes are deemed to have been cast freely and voluntarily, according to law. They are not held to be vitiated by the fact that they are dictated by the leadership, because it is presumed that the members have voluntarily and out of free will accepted that guidance. So far it is all right. But the question arises, whether this indulgence would cover amendments which are not just day-to-day administration or simple law-making, but seek to alter the Constitution itself, which according to every view is above party. There is a great difference between normal legislation and a motion to amend the Constitution.

Part III of the Constitution, in particular, stands prominently outside not only normal legislation but outside the rest of the Constitution. It deals with what have been called fundamental rights of citizens vis-a-vis the State and the Government that enjoys a majority for the time being. The question is whether votes cast for the purpose of amending and curtailing these rights, could be dealt with by party-whips in the same manner as a piece of legislation, say, to change the running of motor buses or the sale of cement.

It is true that by a legal fiction the votes cast by members of a political party are free votes, although they may be tendered in blind obedience to party orders and against their own personal convictions. But the question is whether it would be legal for a party to openly defy decency and send round a ‘whip’ for the purpose of obtaining the necessary votes to change the articles relating to fundamental rights in the Constitution. A member of Parliament may accept secret advice from his party and con-yen it into his own voluntary act. But it is another thing for the party openly to go about demanding votes according to its decision and converting itself defiantly into a super-Parliament, demoting the constitutional position of Parliament from its sovereign status to that of a mere registering body. It would be open revolt, nullifying the value of debate, discussion and reflection, and compelling members to record, not their own wishes but that of the party leadership.

The Constitution provides a higher ratio of votes for the purpose of validly changing an article of the Constitution and further provides that, for changing an article in Part III of the Constitution, the votes cast in favour of it should be more than half of the total strength of the House and not merely of those present at the time of voting. Surely, the spirit and intention of the Constitution are frustrated if we permit an extra-constitutional combine to command the votes, one way or another.

The command vote, it may be argued, is given freely all the same and must count as freely given. This argument cannot be valid as the party’s control over members carries with it heavy implied sanctions. If a member dares to disobey, he stands to lose many valuable privileges and advantages. A vote given in such circumstances cannot be deemed freely given. The whip is not mere advice, but carries by implication penalties for disobedience. A vote given in accordance with it cannot therefore be deemed a free vote for the purpose of making up the required total majority of the House.

In the early days of industrialization in England, according to the common law, a man was free to give or withdraw from giving his body-labour or personal services of any kind, if he was prepared to accept the penalty therefor under his contract. He could not be compelled to serve. But if other persons combined to induce him to break his contract, it was a wrong or tort for which they could be proceeded against. A member of Parliament may vote just as he pleases, but if other persons combine and organize so as to compel him to vote one way and not another, I submit it is a conspiracy to defeat the purpose of the constitutional provision that none of the articles in Part Ill shall be altered or amended unless more than half of the entire registered strength of the House is recorded in favour of such a change.

In the particular case we have before us, there is one more glaring fact to be taken into account. The Amendment was actually put to the House in the first week of May, and failed to secure the strength laid down by the Constitution as necessary. It is now to be brought up again before a special session of the House and the votes are called for openly, by the whip of the ruling party. Members are prevented from being absent or abstaining, on pain of losing the valuable privileges which they and those in whom they are interested now enjoy under the law and the prevailing regimented economy. All the objections that attached to a party whip are doubled when the whip comes from the ruling party.

I have grave doubts, for these reasons, whether it is constitutionally right for the Congress Party thus to enforce the passing of the Nineteenth Amendment as the Prime Minister and the party have planned to do by utilizing the threat of expulsion from the party or putting into action other party sanctions. That it is morally wrong goes without saying. It is a permit-licence conspiracy to defeat the spirit of the Constitution. I consider that the procedure adopted is not only immoral but also illegal. Precedents from other countries do not help us, as the discipline of parties is nowhere else as strict and enforced by sanctions as it is in our country.