Unethical purchase and sale of MLAs in Rajya Sabha

What is the effect of a whip? A Minister in the Himachal Pradesh government officially says: “In the initial stages, we had contemplated issuing a whip but when we got to know that in the Rajya Sabha elections, a whip does not matter, we did not issue the whip”. The Bharatiya Janata Party challenged the Congress’ move, while the Election Commission of India on February 25 accused the BJP of violating the rules of the conduct of elections in Himachal Pradesh.
Another step is that the Congress went back on the whip. As for Uttar Pradesh, Karnataka, and Himachal Pradesh, MLAs had resorted to cross-voting in all the three states. Although the political parties had issued three-line whips, the lawmakers deviated from the norm.
No wonder, MP candidates recently won an additional eighth seat out of a total of 10 in the Rajya Sabha elections. The Samajwadi Party (SP) was shocked and felt outmanoeuvred. The BJP achieved this victory by exploiting cross-voting tactics. At least, seven SP MLAs had voted in favour of the BJP.
Then why whips were not issued for the Rajya Sabha elections? If there is no whip, MLAs are ‘free’ to cast ‘conscience vote’. It means the MLAs can happily avoid any action under the anti-defection law or the 10th Schedule even if they cross-vote.
At six MLAs elected by the Congress simply voted in favour of BJP in Himachal Pradesh. The legislators did not care to violate the three-line whip.
In Karnataka, one BJP MLA voted in favour of the Congress. The BJP and the Janata Dal (Secular) had issued whips. The MLA had violated the party whip.
Politicians are known for their expertise in using constitutional mechanisms to their advantage. Those belonging to the BJP did it in Uttar Pradesh and other states also.  For instance, the SP had fielded candidates for three seats but ended up losing one, resulting in just two Rajya Sabha berths. It is important to note that we should not assume that votes were purchased. Instead, cross-voting tactics were used, which intensified before voting day, with eight SP MLAs skipping a crucial meeting of party leaders.
The BJP party currently has 252 MLAs in the Uttar Pradesh Legislative Assembly, and with the help of its friendly Apna Dal (Sonelal), Nishad Party, Suheldev Bharatiya Samaj Party, Rashtriya Lok Dal, and Jansatta Dal (Loktantrik), they were short of eight votes. Each seat required 37 votes, which meant the BJP needed a total of 296 votes to secure its victory.
According to sources, the initial plan was to field seven candidates. However, when senior functionaries had a conversation with a senior SP MLA, an opportunity seemed to emerge to split the SP’s votes. The BJP leader claimed that at least three SP MLAs had assured their party a week before the polls that they would cross-vote. The BJP claimed that a Union Minister, one state Minister, and two party functionaries (state and national) played a key role in the move. Of the eight SP MLAs who had rebelled and skipped Akhilesh’s meeting, three were from the Congress strongholds of Raebareli and Amethi, which the BJP aims to win in 2024. Both the BJP and the SP have enough numbers to send seven and three members, respectively, unopposed to the Rajya Sabha. However, by fielding Sanjay Seth as its eighth candidate, the BJP forced a competitive faceoff on one seat.
To get elected to the Rajya Sabha from Uttar Pradesh, a candidate needs nearly 37 first-preference votes. The election is seen as the first electoral test for the INDIA bloc, as the Samajwadi Party and the Congress had sealed a seat-sharing deal in Uttar Pradesh days ahead of the February 27 polls. In Karnataka, the ruling Congress had shifted all its MLAs to a hotel ahead of the biennial election to fill four vacancies. There was speculation about cross-voting in this election.
In Himachal Pradesh, the ruling Congress has issued a whip to all its MLAs to vote for party candidate Abhishek Manu Singhvi. The BJP has alleged that the move is to pressurize the MLAs and that the MLAs have the right to vote as per their wish. The Congress has a clear majority in the Himachal Pradesh Rajya Sabha polls with 40 out of 68 MLAs and the support of three independent MLAs. It is worth noting that while the Constitution of Bharath has a prescribed formula for Rajya Sabha MP elections, the Bharatiya Janata Party has its formula. Members of Parliament are elected by MLAs through a proportional representation system.
The issue and consequences under the 10th Schedule need to be understood that a party cannot act against any MLA under the 10th Schedule as a whip cannot be issued for voting in the Rajya Sabha election. This voting is not inside the House but is conducted by the Election Commission. As per law, there cannot be a whip.
The former secretary general of the Lok Sabha, PDT Achary, who is an expert on Constitutional issues on legislature, says that a member can voluntarily give up the membership of a party and adds that if an MLA has acted against the interests of his party or government; then the Speaker of the Assembly can interpret it as “voluntary giving up membership”. Then the MLA does not have to resign. His conduct or action matters and the Speaker can interpret these actions. An instance is this kind of ‘interpretation’ may become crucial for the survival of the Sukhvinder Singh Sukhu government in Himachal Pradesh now.
In the 68-member Assembly, the Congress has 40 MLAs, the BJP has 25 and there are three independent MLAs. If the Speaker takes action and disqualifies the six rebel MLAs who had voted in favour of the BJP, then the strength of the House will come down to 62. The halfway mark is 31 and the majority mark would be 32, just two less than the Congress’ strength.