On July 11th while responding to an ongoing controversy related to the legal validity of a conscience vote that might defy a political party’s directive the Election Commission made the following statement:

"Political parties cannot issue any direction or whip to their members to vote in a particular manner or not to vote at the election leaving them with no choice, as that would tantamount to the offence of undue influence within the meaning of section 171C of the IPC… In the Commission's opinion, the voting or not voting in the Presidential poll as per the member's own free will not come within the ambit of disqualification under the Tenth Schedule (Anti-Defection Law) to the Constitution of India."

The meaning and intent of this statement is clear and not open to any ambiguity. 

However the distinguished jurist and former Attorney-General of India, Mr. Soli Sorabjee, stated an opposite view during an appearance on TV. Subsequently, writing in his weekly newspaper column in a national daily after the EC’s statement Mr. Sorabjee iterated his view with strong emphasis. On July 15th he wrote:

“A political party would naturally expect its members to vote for its Presidential nominee according to the party’s directive. Example cited of the 1969 Presidential election when Sanjeeva Reddy and V V Giri were the rival contestants is misplaced because at that time there was no anti-defection law which is in operation under the Tenth Schedule of the Constitution, Clause 2(b) provides for disqualification of a member if he or she votes or abstains to vote contrary to party’s direction, in other words the party whip, unless the member has obtained prior permission from his party. Tenth Schedule was challenged in the Supreme Court inter alia on the ground that penalty of disqualification under clause 2(b) violated freedom of conscience of the member. The Supreme Court, however, upheld the constitutionality of the Tenth Schedule. In that view of the matter conscience vote apparently has hardly any constitutional significance.”

This is in direct contradiction to what the EC stated. It is surprising that Mr. Sorabjee contradicted the EC without any reference to its statement on the subject. According to the EC no party whip can be issued in a Presidential election. That would render Mr. Sorabjee’s reference to the anti-defection law irrelevant. The voting for the Presidential election takes place on July 19th.

The voters in that election, all the MPs and MLAs, have a right to know what the correct legal position is. Yet here there are two individuals, one holding a constitutional office, and the other having previously held one, proffering two diametrically opposite views on a crucial aspect of the Presidential election on the eve of voting.

There has been much criticism about the level of campaigning by the two candidates for the Presidency. But is the level of debate regarding the validity of voting in this election by two constitutional authorities any better? Unless motivated opinion is being deliberately expressed to sway the voting trend the confusion caused displays regrettable irresponsibility.