A legislator in London or Washington who defies her party risks her career. A legislator in New Delhi risks her seat. That difference is not a quirk of practice but a consequence of the Tenth Schedule, and every reform committee since 1990 has recommended narrowing it.
Kochi: Asked at a talk on ‘Horse Trade and Democracy’ organised by the All India Lawyers Union how the Indian position compares with other parliamentary systems, Senior Advocate Kapil Sibal drew a contrast with the United States, the United Kingdom and Europe, where in his account a legislator elected on one party’s ticket retains a genuine choice about how to vote.
He illustrated it with the American practice of cross-party negotiation on individual pieces of legislation, and attributed the Indian difference to the pull of office, the desire for advancement within the party being strong enough that members follow the direction regardless.
Where the comparison needs qualifying
Taken literally, the proposition that these systems have no whip is too broad, and it is worth being precise because the precision is where the real argument lies.
The United Kingdom has one of the most developed whip systems anywhere, including the three-line whip, and the Indian whip was inherited from it. The United States Congress has formal party whips in both chambers. What those systems lack is not the whip but the sanction. An MP at Westminster who defies a three-line whip may have the party whip withdrawn, may sit as an independent and may face deselection at the next election. What does not happen is loss of the seat. The voters who elected her decide that question, at the next poll.
India attaches a different consequence. The whip finds no mention in the Constitution or in the Rules of Procedure of either House, and operates purely as convention. What converts that convention into a binding legal direction is Paragraph 2(1)(b) of the Tenth Schedule, under which a member is disqualified:
“if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs…”
Subject to the party condoning the act within fifteen days, defiance of a whip therefore puts the membership of the House itself at stake. That is the distinction Sibal’s comparison is reaching for, and stated that way it holds.
What Kihoto Hollohan said about the whip
There is a further point, and it cuts against current practice rather than in favour of it.
When the Supreme Court upheld the Tenth Schedule in Kihoto Hollohan v. Zachillhu in 1992, it addressed the objection that Paragraph 2(1)(b) curtails a legislator’s freedom of expression. In doing so the Court read the provision narrowly, indicating that its operation was confined to a vote on a motion of confidence or no-confidence in the Government, or to a matter forming an integral part of the policy and programme on the basis of which the party had approached the electorate. Outside those situations, the Court’s reasoning suggests, the whip was not intended to operate as a disqualifying direction at all.
Practice has not followed that reading. Whips are routinely issued across the range of substantive business, and a member who defies one on an ordinary Bill faces the same statutory exposure as one who brings down a government. The gap between what the Court described and what parties actually do has never been closed, either by amendment or by a subsequent ruling policing the limits.
Four decades of unimplemented recommendations
The proposal to narrow the whip is not novel and is not Sibal’s. It has been made repeatedly by official bodies and ignored each time.
The Dinesh Goswami Committee on Electoral Reforms recommended in 1990 that disqualification be confined to two situations, namely a member voluntarily giving up membership of his party, and voting contrary to the whip on a motion of confidence or no-confidence, a money Bill, or the motion of thanks to the President’s address. The same Committee recommended that the decision be taken by the President or the Governor acting on the advice of the Election Commission rather than by the Speaker.
The Law Commission of India made comparable recommendations on limiting the whip in its 170th Report in 1999 and returned to the subject in its 255th Report in 2015. Neither was acted upon.
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Why it matters
The case for a broad whip is stability. A government that can be brought down by a handful of its own members on any given afternoon cannot govern, and India’s experience between 1967 and 1985 is the strongest argument anyone has for that position. Nothing in the criticism of the whip answers that history, and any proposal to narrow it has to.
The case against is about what a legislature is for. If a member cannot vote against a Bill without risking her seat, then scrutiny of legislation moves out of the House entirely, and committee work, floor debate and the amendment process become procedural rather than substantive. A recurring criticism in parliamentary studies is that the role of the individual member in India has thinned to the point where the outcome of most divisions is known before the debate begins.
There is a subtler consequence too. In a system where the whip binds absolutely, a government no longer has to retain the confidence of its own backbench between elections, because dissent is disqualifying rather than merely costly. The accountability that the parliamentary system assumes runs inside the governing party, and the Tenth Schedule removes much of it.
Whether that trade was worth making is a legitimate argument on which reasonable people differ, and the answer has consequences for how the merger question now before the Supreme Court is resolved. What is harder to defend is the present position, in which the Court has described a narrow provision, Parliament has been advised three times over thirty-five years to narrow it, and practice has quietly gone the other way.
Speaker: Senior Advocate Kapil Sibal, Independent Member of the Rajya Sabha
Occasion: Talk on ‘Horse Trade and Democracy’, All India Lawyers Union, Kochi, September 13, 2026
Key references: Paragraph 2(1)(b), Tenth Schedule to the Constitution | Kihoto Hollohan v. Zachillhu, 1992 | Committee on Electoral Reforms (Dinesh Goswami Committee), 1990 | Law Commission of India, 170th Report (1999) and 255th Report (2015)
