Post-poll pacts need disciplining

K N Bhat

The practice of legitimising an alliance of two or more parties defeated at the polls and permitting their coalition to form a government — as was done in Karnataka — portends possibilities that urgently call for a closer look. The fact that such coalitions have happened in Goa, Tripura and other places is no justification for its perpetuation — repetitions of evil practices may set up a wicked and obstinate convention that may be difficult to dislodge.
A comparable scenario at the Centre in 2019 cannot be ruled out. The largest single party or pre-poll coalition may win — say 270 seats in the Lok Sabha — obviously a number not sufficient to justify the claim for forming a government. However, a combine of all the other defeated parties will add up to and beyond the halfway mark.
Their claim to form a government has to be honoured as unfortunately blessed by a five-judge bench of the Supreme Court in the case of Rameshwar Prasad (2006). The challenge there was to the dissolution of the Legislative Assembly to be formed following the February 2005 elections — the pronouncement was on January 24, 2006 after fresh polls in Bihar were concluded and a new government was formed in November 2005 — hence the verdict was an avoidable academic exercise that has validated a dangerous practice.
Disastrous consequences to the nation of a rule by such a coalition even for a brief spell of six months are not difficult to imagine.
Do our Constitution and the laws envisage any way to prevent such a situation? Does our conception of democracy begins and ends solely with counting of heads? These are some of the many questions that call for answers.
The phrase “political party” was not found in our Constitution until March 1985 when the much-touted anti-defection law — the 10th Schedule — was enacted through the Constitution (52nd Amendment) Act. Till then voting in the Houses on any issue was entirely left to the member concerned. This freedom brought in the notorious culture of “aaya Ram, gaya Ram” propounded by Chaudhary Charan Singh and perfected by Bhajan Lal. The election results then meant nothing in the matter of government formation. And so the anti-defection law was enacted to deal with the menace of post-poll party hopping.
That law as enacted in 1985 only provided that individually members could not change party affinity but a minimum of one-third of the number of members of a party could collectively jumps sides safely. In other words, retail horse-trading was prohibited, but permitted in bulk or wholesale.
That anti-defection law became a joke — the smaller the party the easier it was to engineer defection without violating it. To remedy the situation the 91st Amendment Act of 2003 was passed amending the 10th Schedule with effect from January 1, 2004. Under the amended law, the concept of one-third was done away with and only a merger of political parties post-poll could escape the wrath of the anti-defection law.
A merger under the new law required a minimum of two-third of the number of members of a party concerned to agree for such a move — the minority who did not agree to the merger is left alone as a separate party. With the merger those who opt for it lose their original identity. Surely the Speaker or the Chairman concerned who are authorised by the law to accept or reject the claim of merger would demand something more concrete than an oral assertion to prove the case.
In the course of dealing with a challenge to the constitutional validity of the new law, the Supreme Court in the case of Kihoto Hollohan (1992) has dealt in detail with the concept of merger as a better alternative in the context of preserving democratic values.
Strangely, a post-poll coalition that could be termed as “reverse defection” — a member jilting his party is defection; a party leadership ditching its members (by taking a decision with no reference to its members) must be the reverse — envisages no formality. The satisfaction of the governor or the President as the case may be on the basis of representation of a gang of leaders of defeated political parties is all that is needed for extending an invitation to a floor test. And the result of the floor test in such a case is wholly predictable with an assured tenure of a minimum of six months to share political power in a state or at the Centre.
An elected member has to abide by his party whip, or else he is guilty of defection. But a party’s leadership is not obliged to respect this view. The elected members — each one of them a potential chief minister or a Prime Minister or a minister — are imprisoned incommunicado. The level of comfort in resorts may be good, but the degree of open suspicion that they are subjected to is humiliating.
If indeed they are the horses that are subjects of professed protection from being traded, relief could have been got through the law that seeks to prevent cruelty to animals.
Is this our democracy in the final analysis? The majority of voters — except those who sold their votes — would not have taken the trouble of visiting polling booths only to usher in a system like this. Perhaps the era of freedom to defect was less nefarious and surely less dangerous to the country.
The options to save our democracy from lurking organised looters are — amend the law — taking the clue from the 91st Amendment — to make merger of parties a compulsory pre-requisite to justify post-poll alliances staking claim to form a government. That may not be easy now because the politicians who can never hope to come to power in the normal course have tasted blood. But the Supreme Court can step in “suo moto” and review its gratuitous opinion in the Rameshwar Prasad (2006) case and declare the law afresh about post-poll alliances after re-examining the issue in the light of experience gained. Or else scrap the anti-defection law.