26/07/2017 3:02 PM IST | Updated 26/07/2017 4:24 PM IST

Is It Time To Let India's MPs And MLAs Vote Freely?

The Presidential election is the only secret vote without a party whip.

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Last week's election of the 14th President of India marked a lesser-known milestone in the country's parliamentary democracy. The vote for the President is the only secret ballot vote exercised by MPs and MLAs in which a party whip--the legal requirement that legislators must vote along the party line--does not apply.

India's Anti Defection Law, passed by Parliament in 1985 through the 52nd amendment to the Constitution, is particularly powerful; with respect to voting, an MP or an MLA is deemed to have defected if he or she "votes or abstains from voting... contrary to any direction of [his or her] party." Essentially, every vote in an assembly or the Parliament must be along party lines, and the MLA or MP is legally debarred from exercising his or her own opinion. After 21 MPs cross-voted during the 2008 trust vote against the UPA-I government, several were expelled and disqualified under this law.

Since the election of the President is meant to be a "non-political" event, it is the one time that the whip is not applied, and MPs and MLAs are free to vote as per their conscience. The only other election in which a whip does not apply is when MLAs vote for new members to the Rajya Sabha, but that election is conducted through an open ballot--meaning that the MLA is required to show the official agent of the party whom he or she voted for--making it far harder for MLAs to defy party directions.

As a result, the election of the President becomes the only "free" vote in India's Parliamentary democracy. Sure enough, there is some cross-voting during every Presidential election. In 1969, the Prime Minister Indira Gandhi-backed "independent" candidate V.V. Giri defeated the official Congress candidate Neelam Sanjiva Reddy to become President despite the Congress having a 431-seat majority in Parliament. In last week's election, over 100 MLAs appear to have cross-voted, the most significant group being the Shankersingh Vaghela faction of the Gujarat Congress, whose leader, soon after, quit the party.

But none of these can truly be seen to be "ideological votes" of the sort that those who oppose the blanket application of the party whip in India wish MPs and MLAs would be able to exercise. "The Presidential election was largely on party lines and the divergence seems to be led by people who are leaving the party," says M.R. Madhavan, president and co-founder of PRS Legislative Research. "This is different from the divergence from the party line by UK MPs on the Brexit vote and US Senators on the health bill, which were largely due to ideological reasons and constituency pressures," he says. During the recent Brexit vote in the UK, a fifth of labour MPs defied the party whip having seen their constituents support for remaining in the European Union in a referendum vote. The recent healthcare vote in the US, meanwhile, failed when four Republican senators said they would not support it. The vote for the President in India could at most be seen as preference for one political party over the other, but it would be naive to paint it as a genuine preference for one candidate over the other.

While many who advocate for Parliamentary reform recommend doing away with the harshest parts of the anti-defection law, in a country where voters still have limited information about individual MPs and still tend to vote broadly for the ideas and ideals of a party and its top leadership, I am unsure whether empowering MPs to vote as per their conscience on legislative matters is necessarily a good thing. One area of middle ground could be Madhavan's suggestion that at the very least, ever vote of an MP or MLA should be recorded so that constituents can know which way their representative voted on key issues and hold them accountable for it.