Guest post by ANMOLAM and FARHEEN AHMAD

The ghar-wapsi of Mr. Nitish Kumar and the rupture of the grand alliance in a ‘not-so-grand’ manner came as a major surprise to all. Political pundits have expressed much on it with views ranging from ‘credibility crisis and convenient conscience’ to ‘the anti corruption crusade’. Without getting into debate pertaining to the socio-political ramification of the step taken by Mr Kumar and the political perception generated in this regard, what interests us is the legal framework dealing with the issue. Although, there does not seem to exist definite legal provisions addressing the issue, the closest legislation in this regard is ‘Anti defection’ law. But for specific reasons, the anti-defection law does not seem to provide a remedy in such instances of ‘de facto defections’.

As a brief outline, the anti-defection law was passed by the Parliament of India in 1985. The 52nd Constitutional amendment inserted the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. Broadly, the law provides that a Member of Parliament or state legislature is deemed to have defected if he either disobeyed the directives of the party on a vote or voluntarily resigned from his party. In other words, they may not vote on any issue in contravention to the party’s whip.  Nominated members who were not members of a party could choose to join a party within six months; after the said period, any attempt to join might lead to defection.

However, the law does provide for some exceptions. In the present context, the relevant exception says that a ‘party’ could be merged into another if at least two-thirds of its ‘party’ legislators voted for the merger. Given the fact that the term ‘party’ is used in the legislation, and not ‘coalition’, cases like that of Mahagathbandhan fail to fall into the category of defection under the present legal scheme.

How is it problematic?

It is argued that until and unless the cases of coalition are covered under the legal scheme of anti defection, the real object and purpose of the anti-defection law shall not get accomplished. The Apex court, while upholding the constitutional validity of the anti defection law in Kihoto Hollohan v. Zachillhu, categorically discussed the intent behind anti-defection law. The Apex Court quoted Professor Rodney Brazier, who in his book Constitutional Reform-Reshaping the British Political System observes that

“In a sense anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct- whose awkward erosion and grotesque manifestations have been the bane of the times-above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation.”

Further in the context of political parties, the Apex Court added

“The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections… A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival.”

In today’s Indian political arrangement, coalition has become almost an inevitable reality. Apart from the formal institutional arrangements, for all practical purposes pre-poll coalition functions as one party. The coalition partners do not contest elections against each other. Their cadres work on behalf of the coalition and not just the party. To a large extent, the coalition partners act as a consolidated unit; although the institutional structure of the parties exists separately. The manner in which a pre-poll coalition/alliance approaches the electorate, the way in which it sets its agenda, programme and manifesto, it is evident that de facto it functions as a ‘single unified unit’. Arguably, the voters vote for a set agenda and political ideology on whose premise the edifice of both, party as well as coalition, rest upon. Democracy is not just about making choice, it is about making ‘informed choice’. Coming together of two or more parties and the agenda set up by them is something which a voter considers before casting her/his vote. Mahaganthbandhan is a classic example of a coalition which offered the masses of Bihar an agenda distinct from that of NDA.  Mahagathbandhan for all practical purposes (probably, except sharing of seats) acted as a single unit. Shattering of Mahagathbandhan is not just breach of trust between the coalition partners; rather it  appeared to many as conscious demeaning of the aspirations of the people of Bihar.

This brings us to the central legal issue- Should anti-defection law, which only covers defection in the context of a political party, also extend to coalitions (like Mahagathbandhan). It seems Law Commission of India feared that a situation like Bihar might arise in future, therefore, it recommended in its 170^th report on ‘Reform of the electoral laws’ that a ‘pre-election front/coalition’ of political parties should be treated as a “political party” for the purposes of the Tenth Schedule.

Agreed, ‘fair politics’ is an oxymoron but here lies the significance of law which has to check its apparent shortcomings. Another suggestion in this regard can be made in order to check post-poll ‘alliances of convenience’ whose illustrations are present across political parties. Some of the recent ones include the JDU-BJP alliance, BJP-PDP alliance, AAP-Congress alliance wherein parties with diametrically opposite election manifestoes and promises came together to share power, under the veil of saving democracy and exchequers money spent on elections. If for the proper functioning of democracy, disclosure of criminal antecedents, educational qualification and wealth of the candidate is needful, isn’t it pertinent to ask the political parties to disclose a list of ‘probable post-poll alliances’ under a legal framework (whose modality can be elaborately debated). It might help the electorate to gauge the level of political and ideological commitment of the parties. The electorate might be in a position to know the veracity of criticism and rivalry displayed by the parties. The situations like that of Bihar, Delhi and Jammu & Kashmir can be avoided wherein the biggest rivals, after results, joined hands by overshadowing conviction for convenience. The test of democracy is not just about adherence to the procedural formalities, it is also about the extent of fairness reflected in the people’s voice and its representative government, as well as the identification of the gap between the perception and political reality.

[Anmolam is the President of BDLAAAW-Buddies for Legal Aid and Awareness. Farheen Ahmad is a research scholar at South Asian University.]