by : Ravindra Garimella 101

Filibustering

The  parliamentary expression used in legislating context is Filibustering is interesting both in its historical context as well in its application in countries where it is in practice. What does Filibustering mean in parliamentary/legislative context?

Concise Oxford English Dictionary defines Filibuster as “prolonged speaking or other action which obstructs progress in a legislative assembly while not technically contravening the required procedures”. In its historical context the term has been defined as “a person engaging in unauthorized warfare against a foreign state”.

  • Filibustering is to deliberately waste time during a debate by making overlong speeches or raising unnecessary procedural points. In this way a Bill or a motion may be ‘talked out’: stopped from making progress within the time allowed.
  • A filibuster is a parliamentary procedure where debate over a proposed piece of legislation is extended, allowing one or more members to delay or entirely prevent a vote on the proposal. It is sometimes referred to as “talking out a bill” or “talking a bill to death” and characterized as a form of obstruction in a legislature or other decision-making body.

It would be quite interesting to dwell upon genesis of Filibustering.

Ancient Rome

One of the first known practitioners of the filibuster was the Roman senator Cato the Younger. In debates over legislation he especially opposed, Cato would often obstruct the measure by speaking continuously until nightfall. As the Roman Senate had a rule requiring all business to conclude by dusk, Cato’s purposefully long-winded speeches were an effective device to forestall a vote.

Cato attempted to use the filibuster at least twice to frustrate the political objectives of Julius Caesar.

Etymology

The term “filibuster” ultimately derives from the Dutch vrijbuiter (“freebooter”, a pillaging and plundering adventurer). The Oxford English Dictionary finds its only known use in early modern English in a 1587 book describing “flibutors” who robbed supply convoys. In the late 18th century, the term was re-borrowed into English from its French form flibustier, a form that was used until the mid-19th century.

The modern form “filibuster” was borrowed in the early 1850s fromthe Spanish form filibustero, and was applied to private military adventurers like William Walker who were then attacking and pillaging Spanish colonies in Central America.

Eventually, over the course of the mid to late 19thcentury, the term “filibustering” became common in American English in the sense of “obstructing progress in a legislative assembly”.

Filibustering in Senate of US Congress

To begin with regarding filibustering in Senate of US Congress I have culled out information available from sources to the best of my ability, with main endeavour to give an insight to operation of filibustering.

Senate

The filibuster is a powerful legislative device in the United States Senate. It is not part of the US Constitution, becoming theoretically possible with a change of Senate rules only in 1806, and was never being used until 1837. It was strengthened in 1975 and in the past decade had come to mean that most major legislation (apart from budgets) requires a 60% vote to, bring a bill or nomination to the floor for a vote. In recent years, the majority had preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed. Defenders call the filibuster “The Soul of the Senate”.

Senate rules permit a senator or senators to speak for as long as they wish and on any topic they choose, unless “three-fifths of the Senators duly chosen and sworn” (usually 60 out of 100 senators) bring debate to a close by invoking cloture (US term for closure: Concise Oxford Dictionary) under Senate Rule XXII.

The removal or substantial limitation of the filibuster is called the constitutional option by proponents, and the nuclear option by opponents. Under current Senate rules, a rule change itself could be filibustered, with two- thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to break the filibuster. Even if a filibuster attempt is unsuccessful, the process takes floor time.

On November 21, 2013, the Democratic controlled Senate voted 52 to 48 to require only a majority vote to end a filibuster of all executive and judicial nominees, excluding Supreme Court nominees, rather than the 3/5 of votes previously required. A 3/5 supermajority is still required to end filibusters on legislation. On April 6, 2017, the Republican controlled Senate voted 52 to 48 to require only a majority vote to end a filibuster of Supreme Court nominees.

House of Representatives

In the United States House of Representatives, the filibuster (the right to unlimited debate) was used until 1842, when a permanent rule limiting the duration of debate was created. The disappearing quorum was a tactic used by the minority until Speaker Thomas Brackett Reed eliminated it in 1890. As the membership of the House grew much larger than the Senate, the House had acted earlier to control floor debate and the delay and blocking of floor votes.

State Legislatures

In only 13 State Legislatures in United States have a filibusters namely Alabama, Alaska, Arkansas, Connecticut, Florida, Hawaii, Idaho, Maine, Nebraska, South Carolina, Texas, Utah and Vermont.

        While talking out a measure is the most common form of filibuster in the Senate there are nevertheless though means of delaying and killing legislation. As the Senate routinely conducts business by unanimous consent, one member can create at least some delay by objecting to the request. In some cases, such as considering a bill or resolution on the day it is introduced or brought from the House, the delay can be as long as a day. However, because this is a legislative day, not a calendar day, the majority can mitigate it by briefly adjourning.

In many cases, an objection to a request for unanimous consent will compel a vote. While forcing a single vote may not be an effective delaying tool, the cumulative effect of several votes, which take at least 15 minutes apiece, can be substantial. In addition to objecting to routine requests, senators can force votes through motions to adjourn and through quorum calls. Quorum calls are meant to establish the presence or absence of a constitutional quorum, but senators routinely use them to waste time while waiting for the next speaker to come to the floor or for leaders to negotiate off the floor. In those cases, a senator asks for unanimous consent to dispense with the quorum call. If another senator objects, the clerk must continue to call the roll of senators, just as they would with a vote. If a call shows no quorum, the minority can force another vote by moving to request or compel the attendance of absent senators. Finally, senators can force votes by moving to adjourn, or by raising specious points of order and appealing the ruling of the chair.

The most effective methods of delay are those that force the majority to invoke cloture multiple times on the same measure. The most common example is to filibuster the motion to proceed to a bill, then filibuster the bill itself. This forces the majority to go through the entire cloture process twice in a row. If, as is common, the majority seeks to pass a substitute amendment to the bill, a further cloture procedure is needed for the amendment.

The Senate is particularly vulnerable to serial cloture votes when it and the House have passed different versions of the same bill and want to go to conference (i.e., appoint a special committee of both chambers to merge the bills). Normally, the majority asks for unanimous consent to:

  • Insist on its amendment(s), or disagree with the House’s amendments
  • Request, or agree to, a conference
  • Authorize the presiding officer to appoint members of the special committee

If the minority objects, those motions are debatable (and therefore subject to a filibuster) and divisible (meaning the minority can force them to be debated, and filibustered, separately). Additionally, after the first two motions pass, but before the third

does, senators can offer an unlimited number of motions to give the special committee members non-binding instructions, which are themselves debatable, amendable, and divisible. As a result, a determined minority can cause a great deal of delay before a conference.

Filibustering in Parliament of United Kingdom

In the Parliament of the United Kingdom, a bill defeated by a filibustering manoeuvre may be said to have been “talked out”. The procedures of the House of Commons require that members cover only points germane to the topic under consideration or the debate underway whilst speaking. A few of instances of filibustering manoeuvres in the House of Commons and House of Lords are enumerated below:-

  • In 1874, Joseph Gillis Biggar started making long speeches in the House of Commons to delay the passage of Irish coercion acts. Charles Stewart Parnell, a young Irish nationalist Member of Parliament (MP), who in 1880 became leader of the Irish Parliamentary Party, joined him in this tactic to obstruct the business of the House and force the Liberals and Conservatives to negotiate with him and his party. The tactic was enormously successful, and Parnell and his MPs succeeded, for a time, in forcing Parliament to take the Irish Question of return to self-government seriously.
  • In 1983, Labour MP John Golding talked for over 11 hours during an all-night sitting at the committee stage of the British Telecommunications Bill. However, as this was at a standing committee and not in the Commons chamber, he was also able to take breaks to eat.
  • On July 3, 1998, Labour MP Michael Foster’s Wild Mammals (Hunting with Dogs) Bill was blocked in parliament by opposition filibustering.
  • In January 2000, filibustering directed by Conservative MPs to oppose the Disqualifications Bill led to cancellation of the day’s parliamentary business on Prime Minister Tony Blair’s 1000th day in office. However, since this business included Prime Minister’s Questions, William Hague, Conservative leader at that time, was deprived of the opportunity of a high- profile confrontation with the Prime Minister.
  • On Friday 20 April, 2007, a Private Member’s Bill aimed at exempting Members of Parliament from the Freedom of Information Act was ‘talked out’ by a collection of MPs, led by Liberal Democrats Simon Hughes and Norman Baker who debated for 5 hours, therefore running out of time for the parliamentary day and ‘sending the bill to the bottom of the stack’. However, since there were no other Private Members’ Bills to debate, it was resurrected the following Monday.
  • In January 2011, Labour peers, including most notably John Prescott, were attempting to delay the passage of the Parliamentary Voting System and Constituencies Bill 2010 until after 16 February, the deadline given by the Electoral Commission to allow the referendum on the Alternative Vote to take place on 5 May. On the eighth day of debate, staff in the House of Lords set up camp beds and refreshments to allow peers to rest, for the first time in eight years.
  • In January 2012, Conservative and Scottish National Party MPs used filibustering to successfully block the Daylight Savings Bill 2010-12, a Private Member’s Bill that would put the UK on Central European Time. The filibustering included an attempt by Jacob Rees-Mogg to amend the bill to give the county of Somerset its own time zone, 15 minutes behind London.
  • In November, 2014,  Conservative MPs Philip Davies and Christopher Chope successfully filibustered a Private Member’s Bill that would prohibit retaliatory evictions. Davie’s speech was curtailed by Deputy Speaker Dawn Primarolo for disregarding her authority, after she ordered Davies to wrap up his then hour-long speech. A closure motion moved by the government, which was agreed to 60-0, failed due to being inquorate. (of an assembly not having a quorum – of British origin, Concise, Oxford Dictionary)
  • In October 2016 Conservative Minister Sam Gyimah filibustered a bill sponsored by John Nicolson of the Scottish National Party that would pardon historic convictions of homosexuality (which is no longer an offence), replacing an existing law that requires each pardon to be applied for separately.

The 21st century record for filibustering was set on December 2, 2005 by Andrew Dismore, Labour MP for Hendon. Dismore spoke for three hours and 17 minutes to block a Conservative Private Member’s Bill, the Criminal Law (Amendment) (Protection of Property) Bill, which he claimed amounted to “vigilante law”.

Interestingly though both houses of the Australian parliament have strictly enforced rules on how long members may speak, so filibusters are generally not possible. In local unitary authorities of England a motion may be carried into closure by filibustering. This results in any additional motions receiving less time for debate by Councillors instead forcing a vote by the Council under closure rules.

In Parliaments of France, New Zealand, Canada, Ireland, Italy, Hong Kong, South Korea, Senate of Philippines, Southern Rhodesia, to name a few there are instances of filibustering.

Parliament of India

In the Parliament of India, filibustering in its intrinsic form does not as such exist.

[ This is an extract from my forthcoming book titled ‘ The Parliament of India- Diverse Dimensions’ from the article from one of its Chapter “ Parliamentary Practices and Expressions” , This article is also be carried as a three part series in The Parliamentarian ,CPA , London.]

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by : Ravindra Garimella Practice in Parliament and Political Parties

WHIPS IN INDIAN PARLIAMENT

Political parties have a significant role in the working of a democratic polity. Whips in turn have role cut out for them in smooth conduct of party affairs particularly in matters pertaining to House proceedings. The outcome of endeavours and efficacy of whips is manifest in effective conduct of passage of legislations and from a larger perspective, the House proceedings.

The role of whips in Indian Parliament would certainly provide an interesting study.

Genesis

Whips as an expression in its parliamentary context has its origins in hunting terminology. The Oxford English Dictionary defines the term Whipper-in as, “a huntsman’s assistant who keeps the hounds from straying by driving them back with the whip into the main body of the pack.” According to this dictionary, the first recorded use of the term whipper-in in the parliamentary sense occurs in 1772. (1) However P.D.G. Thomas in House of Commons in the Eighteenth Century cites examples of the use of the term that pre-date 1772.

It was within the context of such summons to members out of the town that the first known Parliamentary instance of the use of the term “whip” occurred in a debate on 8 May, 1769 on petitions from some Middlesex freeholders against the seating of Henry Luttrell instead of John Wilkes,

Edmund Burke who, in a debate in the House of Commons described how the King’s Ministers had made efforts to bring their followers together, how they had sent for their friends to the north and to Paris, whipping them in. The phrase adopted by Burke caught the public fancy and soon became popular.(2)

Coming to the very basic question, what are whips?

Whip is a person, a crucial office bearer as also directives / directions issued by the whips.

Simply put, whips are office bearers of political / legislative party with assigned tasks.

          Whips are also directives issued by the party through their whips (here designated office bearer of the party).

The operation and functionality of whips can be better appreciated through an illustration.

Its kind of triangle, at the top we have the institution of Parliament/ Legislature and at the other two ends we have the parliamentary party (which includes the party whips) and the members of Parliament / Legislature respectively.

It is within this triangular space that the action takes place. Before the Parliament/legislatures, there is question that a Bill be taken into consideration/clauses be adopted/bill be passed etc., or a motion be adopted. The party takes a position or a stand on which their members need to vote. The party, therefore, enjoins their whips to ensure that their members vote as per party’s position on the Bill/motion. Accordingly, the whips are issued by the ‘whips’ for compliance, upon the members who are at the other end of triangle.

It is through this relatively simple illustration I proceed to discuss the role of whips, their functions, responsibilities, consequences of violation of party whips, implications under the Anti-Defection Law and attendant legal issues.

Since the concept of whip is heritage from Westminster system of Government, I would first like to briefly dwell on definition of a political party followed by position obtaining in the United Kingdom.

Political Parties

Coming to defining parties, it would be worthwhile to note the following observations and analysis by Stephen Ingle in his book ‘The British Party System – An Introduction “In the newly established United States of America, Madison was not well disposed to parties, seeing them, as did Rousseau, as factions” actuated by some common impulse of passion or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community……..’(3). Although each of … definitions adds something to our understanding of what political parties are, none captures the compelling simplicity of Burke’s classical, encompassing definition. ‘A party is a body of men united for promoting by their joint endeavours the national interest upon some particular principle in which they are all agreed.’ (4) (Emphasis supplied)

For Burke, unlike Madison, there is no contradiction between the interests of the party and the state. Yet even Burke does not achieve the economy of Epstein’s disingenuous but realistic definition: “Almost everything that is called a party in any Western democratic nation can be so regarded. (5) A working definition culled (from aforementioned) might be as follows. Parties are principally groups of people organized to seek to wield or influence political power through agreed constitutional means in the name of some organized opinion or ideology which binds them together and which distinguishes them from other groups….” (6)(Emphasis supplied)

Position in United Kingdom

As per ‘Parliamentary Practice’ by Erskine, Mays (24th edn) “Inside the House of Commons each party organisation is presided over by members of the House and staffed  by subordinate officials who are not members. The officer or whips of the party in office consist of the Chief Whip who holds the official position of Parliamentary or patronage secretary to the treasury, three officers of the Household and five lords of the treasury with the addition of up to seven members who act as assistant whips; all these whips receive salaries. (7)All government whips rank as ministers of the crown. The Treasurer of her majesty’s household is usually appointed Deputy Chief Whip…”

As for duties of whips, May states ‘The efficient and smooth running of the Parliamentary machine depends largely upon the whips. By far the most important duties devolve upon the Government Chief Whip. He is concerned with mapping out the time of the session. For applying in detail the government’s programme of business; for estimating the time likely to be required for each item, and for arranging the business of the individual sitting’…..

…..In drawing up the programme he is limited to a certain extent by the standing orders, which allot a certain number of days to the opposition and to the Backbench Business Committee; and by statute law or standing orders, which require, or may require, certain business to be completed by specified dates; as well as by certain conventions which make it obligatory upon him to consult the Whips of opposition parties and even to put and even to put down items of their selection. In carrying out his duties, he is directly responsible to the Prime Minister and Leader of the House. It is also part of his duties to advise the government on parliamentary business and procedures, and to maintain a close liaison with Ministers in regard to parliamentary business which affects their departments. He and the Chief Whip of the largest opposition party constitute the usual channels, through which consultations are held with other parties and members about business arrangements and other matters of concern to the House.” (8)

As regards duties of whips in general, May states “Certain duties are common to whips of all parties they keep their members supplied with information about the business of the House, secure the attendance of members, arrange for their members who are unable to attend divisions to ‘pair’ with members of the opposite side of the House so that their votes may be neutralized and not lost, and suggest members to serve on general and certain select committees. They also act as intermediaries between the leaders and the parliamentary membership of their parties in order to keep each informed of the views of the other.” (9)

Whips in the Indian Context

The role of the whips are clearly delineated in the Report of the Committee of Presiding Officers under the Chairmanship of Shri V.S Page the then Chairman, Maharashtra Legislative Council, this report is popularly known as the PAGE Committee Report. In pursuance of a decision taken at the Conference of Presiding Officers held in New Delhi in October, 1967, the Chairman of the Conference (Shri N. Sanjiva Reddy – Speaker, Fourth Lok Sabha) appointed a Committee of Presiding Officers to examine three matters and submit their Report to him before the next annual conference to be held in Kerala in October, 1968. One of the matter for examination was – “What conventions, traditions and other procedural devices are required to be adopted or evolved to enable the Parliament/ Legislatures to function effectively and meet the new challenging situations witnessed in the country.”

On the issue of Whips, the PAGE Committee in their report observed that whips, both of the ruling party as well as those of the opposition, play a very significant role in the smooth and efficient functioning of our parliamentary democracy. Apart from their normal duties of making and keeping the House, they are required to establish and maintain through a tactful handling of situations, good and amicable relations between the Government and the opposition benches, a pre-requisite for the smooth running of the parliamentary business. The Committee also felt that “It is, therefore, necessary that there should be full cooperation among the whips and the leaders of their parties and the speakers. In order to achieve this, one of the essentials factors is that none of them should encroach on the activities of the other.”

Whips as office bearers of Party

In the Parliamentary form of government, a party has its own internal organisation inside Parliament and is served by a number of officials known as Whips, chosen from members of the party itself. In fact, the efficient and smooth working of parliamentary democracy depends to a very large extent on the Whips of the party in power and the party or parties in opposition. (10)

In the Indian Parliamentary context, the whip of parliamentary group is the one who has been designated to ensure that members of the party are present in adequate numbers and vote according to the line decided by the party on important questions.

The Whip of the Government party in Lok Sabha/Rajya Sabha is the Minister of Parliamentary Affairs who is called Chief Whip. The Chief Whip was given a Ministerial status in 1949. Till 1962 his rank was that of a Minister of State when he was made a Minister of Cabinet rank. Consequent on the appointment of the Minister of Parliamentary Affairs as the Leader of the House in February, 1966, the new Government Chief Whip was again raised to status of Cabinet rank in 1967, when the Prime Minister became the Leader of the House. Chief Whip is directly responsible to the Leader of the Government on Parliamentary business. The Chief Whip acts as the eyes and ears of the leader of the Party so far as the members are concerned. During session, in his capacity as adviser to the Leader of the House, he has to be in constant touch with the Prime Minister.

It has been aptly said that the Whips are not only shock-absorbers, but also indicators of the party.

They are not only advisors to the Leader, but also the binding force in the party; they are not only barometers of the different regions and opinions but also the counselors of members. (11)

Whips as Directives

During sessions of the House, whips of different parties send to their members periodic notices and directives informing them of important probable hour of voting and demanding their presence at that time. Such notices and/or directives are also called ‘whips’. Whips have, however, not been defined either in the Constitution, Rules of Procedure and Conduct of Business in Lok Sabha or any other statute.

In their connotation as party directives, whips are said to be of three types-one line, two lines and three lines whips. These are so called by the number of lines by which their text is underlined. The number of lines is indicative of the importance and urgency attached to a particular measure before the House. (12)

One-line whip considered to be the simplest, merely requires the attendance of the members in the House on a particular date and time. Also, one line is indicative of no division being expected.

Two-lines whip is supposed to be somewhat more obligatory and a stronger party directive. It is issued in case of fairly important business and when division is expected.

Three-lines whip indicates most important business and a division. A member must obey it and attend the House, it is entirely mandatory and one can disobey it only at one’s peril. Disregard of a three-line whip is almost certainly likely to invite serious disciplinary action. [In keeping with times, an informal practice has also evolved to the effect that after issuance of whips as conventionally laid down through communications via hard copies, SMSes are also issued to members informing that whips have been issued and members be present on such and such dates for participation and voting in House as per directions issued through said whips]

Provisions under Anti-Defection Law

In the context of issuance of whips provisions under Anti Defection Law as contained in the Tenth Schedule to the Constitution of India are very relevant. Paragraph 2(1) (b) of the Tenth Schedule  to the Constitution of India, which provides that a member of a House belonging to any political party shall be disqualified for being a member of the House. If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

As may be seen from the above constitutional provisions, a ‘whip’ has been referred to as direction. It is in this manner, therefore, that ‘whip’ has been taken cognizance of insofar as provisions of Tenth Schedule are concerned. Hence, violation of whip by member which is referred to as direction in the Tenth Schedule to the Constitution without prior permission of concerned political party, – if not condoned – would make the concerned member liable for disqualification.

Judicial interpretation on applicability of provisions of para 2 (1) (b)

It would be of interest to note interpretations given by Courts of Law on the vires and applicability of provisions of para 2 (1) (b) of the Tenth Schedule to the Constitution.

In the early days itself, of coming into force of the Tenth Schedule to the Constitution one of the contentions before the Punjab & Haryana High Court in Prakash Singh Badal and Others Vs. Union of India and Others (AIR 1987 Punjab & Haryana 263) was that the provisions of para 2 (1) (b) of the Tenth Schedule were violative of article 105 which under its provisions of clause (1) confers upon members privilege of freedom of speech in Parliament and under clause (2), immunity to members from any proceedings in any court of law for anything said or any vote given in Parliament or any Committee thereof. [Corresponding provisions in regard to privileges and immunities to members of State Legislatures are laid down under Article 194 of the Constitution].

As regards the vires of the provision of para 2 (1) (b), the Punjab & Haryana High Court in the aforementioned case have inter-alia held as follows:

“…..So far as the right of a member under article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the Fifty-second Amendment. The provisions of para 2(b) cannot, therefore, be termed as violative of the provisions of article 105 of the Constitution…..”

Subsequently, in 1993 the Supreme Court of India in Kihota Hollohan Vs. Zachilhu & Others (AIR 1993, SC, 412) had the occasion to dwell at length on the constitutionality of the provisions of paragraph 2(1)(b) of the Tenth Schedule.

The Supreme Court in their majority opinion, in their operative conclusions inter-alia observed as under:

“….. (E) That the paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.”

The provisions of paragraph 2 do not violate any rights or freedom under articles 105 and 194 of the Constitution.

Further, it would be worthwhile to take note of the detailed reasoning and observations by the Supreme Court, which have put the matter in its proper perspective, as reproduced below:

“We may now notice one other contention as to the construction of the expression ‘any direction’ occurring in paragraph 2(1)(b). It is argued that if the expression really attracts within it sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule.

The reasoning of the learned Judge that a wider meaning of the words ‘any direction’ would cost it its constitutionality does not commend to us. But we approved the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning. While construing paragraph 2 (1) (b) it cannot be ignored that under the Constitution members of Parliament as well as of the State.

Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House. The disqualification imposed by paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no-confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

Keeping in view the consequences of the disqualification i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a directions.”

The provisions under 2(1)(b) of the Tenth Schedule to the Constitution have been invoked for seeking disqualification of members on several occasions.

Facilities to chief whips

Realizing the vital role played by the Chief Whips and leaders of parties and groups in Parliament as important functionaries, an Act namely ‘The Leaders and Chief Whips of Recognized Parties and Group in Parliament (Facilities) Act’ (Act 5 of 1999) was enacted during the period of the Twelfth Lok Sabha, which came into force w.e.f. 7 January, 1999.

Salient features of the Act

In the definition clause ‘recognized group’ has been defined to mean

  • in relation to the Council of States, every party which has a strength of not less that fifteen members and not more than twenty four members in the Council; 
  • in relation to the House of the People, every party which has a strength of not less than thirty members and not more than fifty four members in the House.

‘recognized party’ – has been defined to mean

  • in relation to the Council of States, every party which has a strength of not less that twenty five members in the Council;
  • in relation to the House of the People, every party which has a strength of not less than fifty five members in the House.

Section 3 of the Act provides that each leader, deputy leader and each chief whip (emphasis supplied) of a recognized group and a recognized party shall be entitled to telephone and secretarial facilities.

As per provision to this Section, such facilities shall not be provided to such leader, deputy leader of Chief Whip, as case may be, who –

  • holds an office of Minister as defined in section 2 of the Salaries and Allowances of Ministers Act, 1952 or
  • holds an office of the Leader of the Opposition as defined in section 2 of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977; or
  • is entitled to similar telephone and secretarial facilities by virtue of holding any office of, or representation in, a Parliamentary Committee or other Committee, Council, Board, Commission or other body set up by the Government; or
  • is entitled to similar telephone and secretarial facilities provided to him in any other capacity by the government or a local authority or corporation owned or controlled by the government or any local authority.

Conclusion

In a parliamentary democracy, for effective floor management, – party discipline and ways and means for effecting party discipline and ensuring compliance of party directives – assumes importance. It is in that context that party whips/directives, are necessary. There are checks and balances to ensure that on one side the party whips / directives do not abuse the members’ rights to freely express their views and at the same time there is effective party floor managements. The endeavours have been to judiciously balance these two.

End Notes

  1. House of Commons briefing notes: The Whip’s office Doc ref. SN/PC/02829
  2. Ilbert: Parliament – Its History, Constitutional and Practice, London, 1948, p135.
  3. The British Party System – An Introduction, by Stephen Ingle (4th Edn) – In the chapter ‘Parties and the party system in Britain’, p5
  4. Ibid: p5, Edmund Burke, Thoughts on the Cause of the Present Discontents (first published in 1770).
  5. Ibid: p5, Epstein 1967:5
  6. Ibid: p5
  7. Erskine May’s, pp50-51 (24th Edn) – Ministerial and other Salaries Act, 1975 (c27), s1(1)(a) and Sch l.
  8. Ibid, p51-52
  9. Ibid, p52
  10. Practice and Procedure of Parliament by M.N. Kaul & S.L. Shakdher, p158, (7th edn).
  11. Ibid, p158
  12. Party Whips, Parliamentary Privilege and Anti-Defection Law, by Dr. Subhash C. Kashyap, JPI, 1988.
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