Choosing a Chief Minister: Is the use of the party whip permissible? – Legal Notes by Arvind Datar

Arvind Datar, party whip

After the death of the Tamil Nadu Chief Minister Dr. J Jayalalithaa, there were rival claims as to who her successor would be. After a brief stint, O Panneerselvam (OPS) resigned as Chief Minister and the stage was set for Sasikala to take over. OPS, after a spell of meditation at the grave of Jayalalithaa, made a sensational revelation of how he was forced to resign and become a rival to Sasikala. Meanwhile, 120 MLAs had been herded like cattle to a beach resort on the outskirts of Chennai. These MLAs were inaccessible and it is popularly believed that they were kept there by force and intimidation.

With the Supreme Court pronouncing her guilty in the disproportionate assets case, all hopes of Sasikala becoming a Chief Minister were dashed but she nominated another candidate ‒ Edapadi Palanisamy as her nominee. The stage was now set for the MLAs to decide who should be their leader ‒ OPS or Palanisamy? There was a demand for a secret ballot which was turned down by the Speaker. It is still not clear whether there was a specific whip issued to the 120–odd MLAs to elect Palanisamy as the CM. But what is interesting from a constitutional law perspective is whether a whip can be issued to the members of a legislative party to elect a particular person as a Chief Minister or Prime Minister when there are rival claimants to such a post?

Historical origin of the Whip: The word “whip” has a sporting origin ‒ “Whipper-in” was the huntsman’s assistant who kept the hounds from straying by driving them back with a whip into the main body of the pack. It is said that every hunt had to have a ‘whipper-in’ whose job it was to ensure that the hounds did not stray. It was his duty to ensure that, on important and critical issues that came up for voting before the Parliament, “the flock had to be herded in the fullest strength possible”. The Whip was usually the confidential right hand man of the leader of the party and it was his duty to “scent dissatisfaction, the formation of disloyal cliques, any damage arising from personal jealousies and ambitions and all possible causes of mischief” (see “The Chief Whip in the British Parliament”, Viscount Gladstone, (1927) 21 American Political Science Review, pp. 519- 528. Viscount Gladstone was the son of the British Prime Minister, William Gladstone).

According to Anne Milton, MP and a Party Whip from 2012, the first equivalent of a whip ‒ (earlier referred to as a “call to Parliament”) ‒ was issued on November 25, 1621 by Sir George Calvert to another MP named, unusually, Sir Julius Caesar. The first recorded use of the “whip” was in 1772  (The Role of Whips in Parliament, Open Lecture by Anne Milton, MP, March 13, 2015). In the website of the UK Parliament, it is stated that: “whips are MPs or Members of the House of Lords appointed by each party in Parliament to help organize their party’s contribution to parliamentary business. One of their responsibilities is making sure the maximum number of their party members vote, and vote the way their party wants.”

Accordingly, whips were issued to ensure that MPs attended Parliament and voted in favour of a particular resolution or opposed a resolution. Whips were issued as 3-line, 2-line and 1-line whips ‒ in order of importance of the direction to vote on a particular resolution. Disobedience could attract disciplinary action.

An excellent article on this subject is by Prof. K.V. Viswanathaiah, Place and Role of Party Whips in Democratic Legislatures in India, (1967) 28 Indian Journal of Political Science, pp. 242- 249.

The Tenth Schedule: The Constitution of India elevated a direction of the party whip and any disobedience could result in a draconian consequence: the disqualification of a person from membership of the House. Para 2(1)(b) of the 10th Schedule of the Constitution of India creates a disqualification if a member of a House either votes or abstains from voting in that House contrary to any direction issued by his political party. The text of para 2 minus  the Explanation, reads as follows:-

  1. Disqualification on ground of defection.—

(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) if he has voluntarily given up his membership of such political party; or

(b) 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 authorised 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.  

The purpose of para 2 is to ensure that a resolution proposed by a political party is not defeated by the infamous method of bribing MLAs/ MPs of that party. This may not only be the actual payment of cash or the promise of a ministerial berth in the event of the existing Government falling and a new Government taking over. Para 2, on a purposive interpretation, cannot be read to permit a specific direction to elect a particular person as the Chief Minister.

It is submitted that when there is a controversy as to whether a particular person is the accepted leader of a group of MLAs, it is necessary that the selection must be free and fair and this can be achieved only if the concerned MLAs have the right to choose their own leader without any mandatory direction. In such circumstances, it is advisable to have a secret ballot. It is also necessary that the Speaker ought to rule that there will be no direction to any of the MLAs to vote in a particular manner. When the purpose is to determine the leader and to choose Mr. X or Mr. Y, any whip or direction to vote Mr. X will render the entire selection of the Chief Minister a farce.

The right to vote is a precious right and not just when voting at polls to elect members either to the Assembly or to the Parliament. Any voting, whether it is for an election to the legislature or even to elect a director at an annual general meeting of a company, must be exercised on the basis of the free will of the voter concerned. Indeed, any provision in the Articles of Association that shareholders must necessarily elect a particular person as their director will be impermissible. This is all the more important in the election of a Chief Minister when there are rival claimants to the post. In such a situation, the proper course for the Speaker is to direct the concerned MLAs to elect their own leader without any direction or whip either outside the Assembly or within the Assembly itself. In Tamil Nadu, there was no dispute about the absolute majority enjoyed by the AIADMK; the only question was: whom did the 134 MLAs of that party actually want as their Chief Minister?

In fine, it is submitted that no whip should be permitted if a similar situation arises in future in any other State or even at the Centre. Further, the provisions of para 2(1)(b) of Tenth Schedule should not apply in cases where the voting is necessary to elect the Chief Minister of the political party which has the majority in the House. A reading of Rule 2(1)(b) itself indicates that if a whip or direction is issued, the only exception is to obtain the prior permission of the political party present or authority to vote in a contrary manner or to abstain from voting. Obviously, when the person to be elected is pre-determined by one rival group, they are not going to permit any contrary voting or abstention. Thus, the entire voting process would become a meaningless exercise.

The Tenth Schedule was intended to prevent horse-trading and protect the essential principles of a parliamentary democracy. The Tamil Nadu episode has thrown up an interesting constitutional controversy. This should be resolved by excluding the application of para 2(1)(b) when there is a controversy as to who should be leader of the party that has a majority in the House.

(Arvind Datar is a Senior Advocate of the Madras High Court. He will be writing a fortnightly column for Bar & Bench on Constitution and other laws.)