Most members of the parliament owe their memberships to votes garnered through political parties of which they are members. However, as members of the parliament, they have their own unique set of rights and duties — chief amongst which is to vote in the parliament for legislative purposes, constitutional amendments or votes of no-confidence.
It is understood that such members would not be part of the parliament if political parties do not support them. In order to bring this point home, and to avoid the ever-prevalent interference, the major political parties incorporated Article 63(A) into the Constitution.
Article 63(A), in essence, provides that if you do not tow the party policy, however absurd, in relation to, say a vote of no-confidence against a prime minister, we shall send you home after following a process. You shall not be awarded the party ticket again, thus diminishing, so they hope, your chances of returning to the parliament — an undemocratic move to counter an undemocratic move.
In effect, Article 63(A) was brought in to discipline the parliamentary members of a political party. At the time of introducing the now overly debated Article 63(A), the political leaders, wary of the rampant interference and floor crossings, knew that all they could do, and all they did, was to threaten the political future of the defectors. It does not stop defection, nor does it nullify the vote, it merely lays down a consequence thereof: a deterrent. Article 63(A) does not envisage automatic de-seating nor does it mean that in all circumstances de-seating will follow.
At the time of introducing the now overly debated Article 63(A), the political leaders, wary of the rampant interference and floor crossings, knew that all they could do, and all they did, was to threaten the political future of the defectors. It does not stop defection, nor does it nullify the vote, it merely lays down a consequence thereof: a deterrent.
The Constitution is, after all, a mechanism providing an edifice to the democratic process. We have been reminded time and again that nothing is redundant therein. Even by the limited and skewed understanding of the dynastic politicians, Article 63(A) is still part of a much-dreaded democratic process, however much it is abused by the powers that be.
To illustrate the role of Article 63(A) and Article 95 let us concoct a hypothesis: in our example let us consider that the then Premier X ends up expressly abandoning the Kashmir cause. Article 95 of the Constitution provides that a certain minimum percentage of parliamentary members can bring about a resolution to propose a vote of no-confidence against the sitting prime minister.
An elementary point needs to be made at this stage: the majority of members of the parliament choose a prime minister. Therefore, the parliamentarians, whether of the treasury or the opposition, can also do away with the prime minister if they so decide. It would be an absurd reading of Article 95, or the process for removing a raving lunatic, that only the opposition could vote in such circumstances. The opposition had already voted against him, and he is still the prime minister.
Back to our story: So what if the zealots and the opposition propose a no-confidence motion against the premier, as provided in Article 95 of the Constitution, and the premier, the party head, directs them against voting him out…
If the zealots still vote against him, they become defectors. Not when they threaten or intend to vote against the premier but only when they actually do. Whether the premier is ousted or not is irrelevant here. The de-seating only takes place when an act prohibited by the party head is acted upon. The party head has a decision on his hands at this stage. Since the party line is not towed, and in order to punish him for such a breach of policy, the party decides that it no longer requires such a disobedient member to be part of its ranks. It initiates proceedings under Article 63(A) — to de-seat such a member.
The majority of members of the parliament choose a prime minister. Therefore, the parliamentarians, whether of the treasury or the opposition, can also do away with the prime minister if they so decide. It would be an absurd reading of Article 95, or the process for removing a raving lunatic, that only the opposition could vote in such circumstances. The opposition had already voted against him, and he is still the prime minister.
Article 63(A) provides a process to de-seat a member. It stipulates that a show cause notice needs to be issued to the recalcitrant member to explain his position. Since no time frame is provided within which the member is to respond, a reasonable opportunity is to be afforded. Let us say a period of seven days.
After seven days, the party head decides that the member did not offer cogent or acceptable reasons for his defection. He is required to write to the presiding officer and the election commissioner for the said member to be de-seated, not disqualified. The commissioner is then responsible to table the party head’s declaration to de-seat the member before the Election Commission that may, or may not, confirm the same within 30 days. This is an interesting avenue, but moot for the present purposes.
In the same vein, let us say the Election Commission does de-seat the member and issues a notification to that effect. The member then has the option to appeal to the Supreme Court. The latter has a statutory time limit to decide such matters within 90 days. Even by a conservative estimation, the process takes time. But even if concluded in a whirlwind it is not instantaneous, as many have let us believe.
Article 63(A) provides for a due process: an eminently democratic principle. The member may choose to go against the party head’s directions or he may simply kowtow. There is, theoretically, room for reprieve for the member as well. But what Article 63(A) and the entire Constitution do not do is assume, or deem, is that once the party head gives directions regarding a vote of no-confidence all members’ votes are subsumed into a collective bargain. To think that would render Articles 63(A) and 95 redundant; non-existent. Such an interpretation is akin to repackaging and re-deploying the Doctrine of Necessity once again.