A Challenge to a Stable Democracy

Free and fair elections constitute the necessary foundation of a healthy democratic society, ensuring that the government acquires authority from the will of the people. The most fundamental principle defining honest elections is that it must manifest the free will of the people. Election and other political processes play a vital role in the quality of a country’s governance. It can either cause a setback to a country’s continuing democratic advancement or may flourish it and to attain such development, the elections conducted must be transparent, inclusive and accountable, and must be of fair and impartial opportunities to compete in the polls. These broad-ranging principles are supported by various electoral process-related obligations, as well as several fundamental rights and freedoms. The electoral cycle approach portrays election as an ongoing, integrated process made up of building blocks that connect with and influence each other, rather than acting as a chain of isolated events.

The Constitution of India provides for a stable democracy for which a firm government in power is needed. Elections manifest the idea of majority power, i.e. the party with the highest number of votes becomes the ruling power in the state. However, the contemporary legal system stands ill-equipped or unqualified to nurture this very notion of a stable government in power. Though the framers of the Indian Constitution had very well realized the necessity for free and fair elections in a democratic society, the present scenario highlights the loopholes in the law which challenge the notion of a stable government in power.

Anti-Defection Law

In Indian politics, a historical event took place where ‘Aaya Ram Gaya Ram’ was a phrase which became famous after a Haryana MLA Gaya Lal changed his party thrice within a day in the year 1967 (from Janta Party to Indian National Congress and again back to Janta Party). These defections helped him to stay on the side of the party who was in power. Therefore, to put a halt on such acts done by politicians, an amendment was passed, which inserted the Tenth Schedule in the Constitution of India and enacted Anti Defection law in the year 1985[1]. This legislation rules out specific processes by which the Members of Legislative Assemblies may be prevented on the grounds of defection by the ordaining officer of the legislature based on imploring by any member of the house. Under the tenth schedule, an MLA may defect on two grounds:-

  1. Disqualification of a member if he/she “voluntarily gives up the membership of such political party”.
  2. If he votes or refrain from voting in the house contrary to the directive circulated by his/her respective political party or by any person or any authority on his behalf, without obtaining the prior permission of the political party, and is not overlooked by his/her respective political party within fifteen days from the date of such voting or abstention.[2]

This means that confined to the above two grounds; an MLA can lose his membership of the house. This law applies to both Parliament and State assemblies. But as we all are familiar with the famous phrase that a coin has two sides; similarly, every provision has for and against.

Loopholes under the Law

There are many instances when this legislation does not fit. When there is a transfer of an MLA from one party to another party or amalgamation of two parties takes place along with the consent of at least 2/3rd of its legislators, then there will be no risk of disqualification of members involved in such situations.

In the case of Ravi Naik v. Union of India, the Hon’ble Court held that even if a member of the political party does not give his formal resignation, his conduct would be sufficient to infer that he has given up his resignation[3]. Further, in the case of G.Viswanathan v. The Hon’ble Speaker, the Hon’ble Court held that if any member who has publicly expressed his/her opposition for the party or has given speeches in favour of the opposition is forced to give his/her resignation from the party[4].

Furthermore, in the case of Rajendra Singh Rana v. Swami Prasad Maurya and Others, the Hon’ble Supreme Court held that the act of giving a letter to the governor requesting to call on the leader of the other party to form a government would result in the act of voluntarily surrendering the membership of the previous party[5]. Moreover, in the case of Kihoto Hollohan v. Zachillhu[6], the Hon’ble Supreme Court held that the order of presiding officer once posed is subject to judicial review. However, there is no time limit prescribed by the Court to take such decision by the presiding officer.

Horse Trading of MLA’s

It has been more the three decades since anti-defection law has come in existence, the Indian political system still bears the wrath of instability owing to the prevalent horse-trading of MP’s and MLA’s. It is a process by which political parties inculcates members of the opposition party in their party to gain the majority in the assembly elections, and this involves undergoing and securing specific disapproved techniques. This particular process is called Horse Trading of MLAs. The alleged party offers certain perks and benefits to the members of the opposition party. The idea behind horse-trading is that negotiations could be carried cleverly, fulfilling the needs of both the parties and these are always done unofficially.

One of the significant loopholes of this law is that it does not attract offence under the Representation of People’s Act, 1951. This suggests that a member of the political party does not get suspended from contesting polls, and political parties use this as a way to inculcate a member in their favour and publically practice ‘Horse trading’ of their party members. Also, in a nation like India, where caste, religions, muscle power, money dominate elections,  the concept of ‘Horse Trading’ has been to the forefront from decades and MLAs are elected back to the house from different parties.

Lately, as we all are aware of the political crises in Karnataka[7], Maharashtra[8], and Madhya Pradesh[9], it is very much evident that our contemporary law is ill-equipped to contend with the practice of ‘Horse Trading’ and it is seen as the infidelity of people’s faith and mandate in politics. This concept of trading of  MLAs to the opposition parties has led to the violation of the fundamental essence of what Indian politics is all about, i.e. free and fair elections[10].

Even after the case of S R Bommai v. Union of India[11], there has not been any explicit representation of when the courts can intervene in such matters. If this scenario persists, even more MPs and MLAs will come forward and take advantage of this existing loophole in the system.

Horse Trading of MLA’s: Violative of Principle of Constitutional Morality

The practice of horse-trading of MP’s and MLAs acts contrary to the fundamental principle of Constitutional Morality. It is also opposed to the spirit of the Indian Constitution, which warrants a stable democracy.  In the case of State of Kerala v. N. M. Thomas[12], the Hon’ble Court highlighted that the primary goal of our Constitution is to eliminate all the disruptions that do exist in our societywherein the Court also held that the various provisions enshrined in the Indian Constitution could only be understood by a spacious, social-science approach, not by pedantic, traditional legalism, thus revealing that the main idea of having a Constitution is to reshape society into a more suitable place. Also, the principles of Transformative Constitutionalism put the interest and rights of the people of the higher pedestal and directs the state to ensure the supremacy of the Indian Constitution. The idea is to safeguard and value the fundamental rights provided to every citizen, and their right to choose should not be hampered in any situation.

Furthermore, in the case of Navtej Singh Johar v. Union of India[13], the bitter truth of continuing struggles between the Supreme Court and Parliament of India came into the picture, and it highlighted the principle of Constitutional Morality and strengthened the power of Judicial Review provided to the Supreme Court of India to ensure the institutional supremacy of the Court.

After the judgement of Navtej Johar’s casethe ascendancy of the Supreme Court and declaring itself as the counter-majoritarian institution over parliament was at the forefront. It provides the Court with extensive powers to go beyond what is prescribed and to act in the role of Counter-Majoritarianism. Justice D Y Chandrachud asserted that:

“Constitutional Morality requires that this Court must act as a counter-majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe.”

Conclusion

The political parties ill-treat the power granted to them to achieve a majority in the house, and it not only infringes the Freedom of expression and choice of every citizen of India but also challenges the very own doctrine of Constitutional morality. Despite, the game of thrones played by the states, a concern ranks up regarding the role of constitutional head and the falling apart of the legal spirit and morality. These actions not only mocks the Constitution but, being made at the cost of the just and fair principle embodied in our Constitution. By engaging in the practice of Horse trading, they not only losing the faith of the people but also, are setting a model of what is known as “autocratic government blinded by the insatiable lust for power”.

Such practices violate the very essence of what is prescribed in these precedents and provide political parties absolute right to practice and inculcate MP,s  and  MLAs in their favour by encroaching upon all the possible ways and types of tools in hand. They violate the very objective of the Preamble, i.e. Justice, Liberty, Equality and Fraternity, which can only be achieved by the proper functioning of the organs of the government to the principle of constitutional morality. The very idea of the incorporation of anti-defection law gets vitiated with such practices prevailing in the society.


[1] INDIA CONST. amend. 52nd.

[2] INDIA CONST. schedule 10th.

[3] Ravi Naik v. Union of India, A.I.R. 1994 S.C. 1558.

[4] G.Viswanathan v. The Hon’ble Speaker, A.I.R. 1994 S.C. 1060.

[5] Rajendra Singh Rana v. Swami Prasad Maurya and Others, A.I.R. 2007 S.C. 1305.

[6] Kihoto Hollohan v. Zachillhu, 1992 S.C.R. (1) 686.

[7] BJP carried out heinous horse-trading in Karnataka; Congress on govt. fail, (Jun. 29, 2020), https://www.businesstoday.in/current/economy-politics/bjp-carried-out-heinous-horse-trading-in-karnataka-congress-on-govt-fall/story/367211.html.

[8]Maharashtra Crisis: A case of Horse-trading, entire stable going the other way or jockey running away, (23 Mar. 2020), https://timesofindia.indiatimes.com/india/maharashtra-crisis-a-case-of-horse-trading-entire-stable-going-the-other-way-or-jockey-running-away/articleshow/72227399.cms.

[9] Madhya Pradesh Crisis: Anxious to avoid horse-trading in the State, says Supreme Court, (24 Mar. 2020), https://www.thehindu.com/news/national/madhya-pradesh-crisis-supreme-court-refuses-proposal-to-produce-rebel-congress- MLAs-in-judges-chamber-says-cant-be-held-captive/article31099915.ece.

[10] Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C. 865.

[11] S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.

[12] State of Kerala & Anr v. N. M. Thomas, A.I.R. 1976 S.C. 490.

[13] Navtej Singh Johar v. Union of India, A.I.R. 2018 S.C. 4321.

Mohit Nautiyal from Law College Dehradun

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