Senior advocate Prashant Bhushan was arguing for NGO Association for Democratic Reforms and senior advocate Kapil Sibal talked about the opacity of the scheme.
In the recent political shift, there was another alliance broken and an old one resurrected in an Indian state. Interestingly, post-poll alliances have numbered more in India than pre-poll alliances.
Rather, it seems quite comfortable for those in political parties to make their choices to ensure their longer occupation of office. However, from a democratic and individual voter-centric perspective how far these alliances seem justifiable needs to be scrutinized carefully.
In the last decade or so, India has seen five to six post-poll alliances, this number will only increase if the overall history of Indian politics is seen. Such events showcase poor control or rather weak regulatory mechanisms to keep a check on such camaraderie. But it is not like post-poll alliances are anti-democratic or against the idea of the Constitution.
Unlike the West, where there are limited political parties, the Indian political ecosystem gives a flexible mechanism to parties to merge and to create new hybrid ideological alliances. Thus, post-poll alliances are not per se illegitimate. However, our Constitution does make an earnest effort to keep a check on horse-trading practices or what is famously slanged as ‘aaya ram gaya ram’ practice. Constant floor-crossing practice of elected representatives has the capacity of diluting constitutional values.
Thus, to stop this practice the Parliament had brought the 52nd amendment in the Indian Constitution, commonly termed as the AntiDefection law, which prohibits defection. However, intrinsically, the Anti-Defection amendment is more individual centric, meaning it prohibits an individual elected representative from going against the whip of the original political party or leaving the political party from which he/she was the candidate. However, rules 3 and 4 are the exceptions to this amendment.
In case of a merger of a political party with another political party, it will not count as a defection by the candidate as she or he will be a part of the new hybrid or combination of political parties. Additionally, if a faction making up 1/3rd of the legislature party leaves the original party, it will also not amount to defection by the candidates (refer to rule 3 of Xth schedule of Indian Constitution).
This has certainly turned out to be a boon for political defectors, as horse-trading might still be taking place, not on the level of the individual member but on a mass level. Even if these members are adjudged disqualified by the presiding officer of the legislature, for defection, they tend to lower the strength of the house, thus allowing the second largest party to form the government.
This is a mandate followed in pursuance of the S.R. Bommai (1994) judgement wherein the Governor tends to call the parties to showcase their strength on the floor of the House. However, there are larger Constitutional questions lurking behind this phenomenon, if mass defections are utilised to topple a government.
For this would tend to defeat the very objective of the Xth Schedule, which is to ensure a stable government with stable governance.
If defection continues to take place, even by means of exceptions, it will open the polity to the same social evil which was persisting prior to the amendment. Though Supreme Court of India has from time to time intervened in questions of disqualifications of elected representatives – as in the cases of Kihoto Hollohan v. Zachillu (1992), Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and others (2016) – these instances cannot keep a lid on the political upheaval that takes place with the movement of a large number of elected representatives from one political party to another, as the exception is becoming a generic rule.
Thus, it is necessary that a normative interpretation should be given to the provisions of the Xth Schedule, and same kind of safeguards should be created for the purpose of exceptions given in the given provisions. The Constitution cannot stand as a mute spectator to such political gimmicks. In the name of stakeholders (the people of India) political parties cannot be moulding the mandate of the people who voted with a particular purpose, for a particular party or coalition. That mandate has a purpose which must be fulfilled. It cannot be dispensed with for personal gain.