“Politics have no relation to morals.”
∼ Niccolo Machiavelli, the European Chanakya.
With each passing Indian election, the relevance of this quote has made a comeback. Just last year, we witnessed a mockery of what is called “democratic formation of government” in Karnataka. That situation has engulfed several states in the recent past: Arunachal Pradesh, Uttarakhand, Goa, Manipur, Nagaland, Rajasthan – and now Maharashtra. In Maharashtra, the dirty game of politics managed to involve the offices of the president and prime minister, besides the regular player, the governor, and the unbiased umpire, the Supreme Court.
The Maharashtra events have brought to the fore three issues of concern – the anti-defection law, post-poll alliances and the role of governor.
Anti-defection law
“Aaya Ram, Gaya Ram” – Ram came, and then Ram left – a popular term for fickle political loyalty, marked the beginning of political defections in lieu of money and plum posts in 1967, when Congress MLA Gaya Lal defected thrice in 15 days – including twice in just nine hours! With the rise of regional political parties and shrinking of national parties’ pan-India popularity, this became more rampant.
In order to nip this evil in the bud, the Rajiv Gandhi-led government introduced the anti-defection law, generally known as Tenth Schedule of the constitution, in 1985 through the 52nd amendment. As the name suggests, the law aimed to disqualify legislators from the parliament/assembly if they voted against the party whip, abstained from voting or resigned from party membership.
However, this clause had a rider: if over one-third of the legislature party defected, then the defection would be deemed a “merger” and not lead to disqualification. When this failed to curb defections, the limit of one-third was amended to a two-thirds majority with the 91st constitutional amendment of 2003. Yet, the problem persists.
Also read: India’s Politicians Have Turned the Anti-Defection Law on Its Head
The law vested the power of disqualification in the speaker/chairman of the House and immunised their decision from judicial review. However, the clause on immunity was struck down by the Supreme Court as unconstitutional (Kihoto Hollohan vs Zachillhu and Others, 1992) while upholding their discretionary power to decide on disqualifications. The Supreme Court held that as the speaker performed as a tribunal under the defection law, his decisions were subject to judicial review.
This judgment found resonance in the recent three-judge Supreme Court bench judgment (Shrimanth Balasaheb Patel & Ors vs Speaker Karnataka Legislative Assembly & Ors, 2019) wherein it upheld the disqualification of 17 rebel MLAs but rejected the Karnataka assembly’s then speaker’s order to restrict them from contesting till the end of the legislature’s term in 2023.
Failure of the law
Framed to act as a deterrent, the anti-defection law has been reduced to a piece of paper. Not only has it failed to stop “horse-trading”, it has also been unsuccessful in denouncing the act. In present times, as have made peace with the immoral nature of politics, horse-trading has been accepted with open arms with popular references like “Chanakya Niti”.
Political ideology is now redundant, replaced with opportunism, and nothing stops MLAs/MPs from switching parties. As seen in Karnataka, despite disqualification, disqualified members finds their way back to the assembly, with a new party – and with loads of money to boot.
Four approaches to lure legislators to defect have been:
- Re-contest from their new party;
- Appointment to plum posts like ministers or chairmen of lucrative public corporations;
- Big sums of money to abstain from participation in a trust vote; and
- Big sums of money to resign (turning the majority of their party on its head) and stay at home.
The total absence of loyalty to an ideology is on full display when MLAs/MPs are stuffed in private buses and locked in hotels to prevent them from getting poached. Who would have imagined poaching and horse-trading would metamorphose from the animal world to the political world.
Post-poll alliances
Another spectre is post-poll alliances. Unlike in pre-poll alliances, where people are mindful of the collaboration when they vote, post-poll alliances are viewed as a betrayal of the people’s mandate and, ultimately, democracy.
Maharashtrian voters experienced the rarest situation: while they voted for or against a Bharatiya Janata Party-Shiv Sena alliance, they ended up with a strange combination of Shiv Sena-Congress-Nationalist Congress Party, called ‘Maha Vikas Aghadi’. The alliance does raise eyebrows, for while Congress and NCP have portrayed themselves as a secular front, Shiv Sena follows a hard right-wing ideology. Despite having mutually agreed upon a common minimum programme, this alliance of strange bedfellows continues to be viewed as political opportunism.
Also read: A Thackeray as Chief Minister Brings its Own Challenges
Is there indeed a solution? In a situation of fractured mandate when no single party or pre-poll alliance obtains a majority, there are two possible options: mid-term polls or a post-poll alliance. Mid-term polls would lead to huge expenditure and more communal polarisation, and would still not guarantee a clear mandate. Against this backdrop, post-poll alliances present a safer bet.
Role of the governor
Fractured mandates have served opportunities to political parties to showcase their talent of twisting and turning the popular electoral mandate. And in this talent show, the judge is the governor. Constitutionally, governors were to act as a link between the state and Union government. But, as history goes, they have allegedly become rubber stamps of the Centre. Their role has extended from impromptu dissolution of elected governments to assenting to the arbitrary formation of governments.
Even though governors have discretionary powers, they were often accused of misusing them. The Sarkaria Commission, set up in 1983 to study the relationship between the Union and the states and the balance of power between them, went deep into this issue. While acknowledging the role of governor, it laid down a priority list to be followed by the governor when there is a hung assembly:
- Pre-poll alliance (it gave the highest priority to the pre-poll alliance);
- Single largest party (with support of others);
- Post-poll alliance, with all parties part of the alliance joining the government; and
- Post-poll alliance, with some joining the government and others supporting it from the outside.
Acknowledging the importance of the people’s vote, the Sarkaria Commission put post-poll alliances as the last resort. The Justice Punchhi Commission (2007) reiterated these recommendations.
President and PMO
A rather worrying development in the chain of events in Maharashtra politics was the involvement of the offices of the president and prime minister. In the political slugfest, they did not exactly cover themselves with glory.
Article 356 (known as the president’s rule) was revoked in Maharashtra at 5:47 am on November 23 based on the governor’s recommendation. Ideally and usually, the governor’s recommendation has to be approved by the Union cabinet. However, in this case a different approach was adopted: the government relied on Rule 12 of the Government of India (Transaction of Business) Rules, 1961, which allows the prime minister to dispense with cabinet approval.
Also read: BJP Played a Do-or-Die Game, the New Maharashtra Coalition Can Now Do the Same
One must question what prompted the government to adopt a rule meant to be used for war-time situations and for important legislations, or why president’s rule was revoked in the early hours of November 23, when earlier the governor had swiftly advised for its application while refusing NCP’s request for additional time.
Way forward
The time has come for our political class to stand up to their responsibilities and take following steps to dissipate the concerns mentioned above:
- Anti-defection law: Defecting legislators must be banned from being appointed as ministers/chairmen of boards, etc. for six years, and must not be allowed to re-contest the elections for the same period. It still leaves one problem unsolved, which is payment of big sums of money to resign and sit at home, reducing their original party to a minority to the benefit of the rival party.
- Discretionary powers of the governor must be done away with and a mechanism based on the Sarkaria Commission recommendations must be put in place. If there is a demand for the abolition of the post of governor, they have no one to blame but themselves.
The country just observed Constitution Day. We must not allow today’s politicians to distort the vision of our country’s founders.
S.Y. Quraishi is a former Chief Election Commissioner of India and the author of An Undocumented Wonder: The Making of the Great Indian Election.
