LEGAL REMEDIES TO PREVENT UNETHICAL COALITIONS

New Delhi June 5 Post-election bonhomie between parties which were at loggerheads with each other during the campaign is unethical. The people’s mandate must reflect in the process of Government formation

The political fallout of the hung verdict delivered by the Karnataka electorate in the recent State Assembly election where losers ganged up to form a Government that was never envisaged by the people, may warrant a fresh look at existing laws pertaining to the Government formation and defection.

A law to sanctify pre-poll alliances and delegitimise opportunistic post-poll alliances may be necessary if one wants some correlation between the people’s mandate and the Government that is eventually formed after the results are in.

BJP leader BS Yeddyurappa’s decision to throw in the towel soon after being sworn-in as the Chief Minister was the only honourable course open to him in the circumstances. There was a time when open trading of MLAs was possible, but those days are over.

Political defections became a norm after the Congress became unpopular in some of the northern and central Indian States in the mid-1960s. The fall of the Congress led to the formation of some coalition Governments that were cobbled together post-election to keep the country’s oldest party out of power.

Many a times, these were wholly unprincipled alliances among disparate political entities which had a common agenda — to keep the Congress out.

The Congress, being well entrenched both at the federal level and in the States, just could not reconcile itself to being out of power and, therefore, began

deploying its resources to buying MLAs to form Governments or to bring down the rag-tag coalitions that emerged in these States.

The first significant step towards ending rampant political defections was taken when the Parliament passed an anti-defection law in 1985 and incorporated the same in the Tenth Schedule of the Constitution.

This law barred individuals from crossing the floor in legislative chambers but permitted splits and mergers. It allowed one-third of a legislative party to break away and form a new entity. Similarly, mergers were permitted, provided two-thirds of a legislative party broke away to merge with another party.

Initially the law seemed to have a salutary effect but soon political parties and legislators found ways to circumvent the law. The provision to split a legislative party came in for gross misuse. For example, a Chief Minister who was short of a couple of votes in the Assembly, could entice two members of a six-member party to ‘split’ the party and cross over.

The Parliament decided to plug this loophole when it enacted the 91st Constitutional Amendment, which took effect in 2004. This amendment removed the provision that permitted splits, thus ending defection by one-third of the members of a legislative party.

The 91st Amendment has had a bearing on post-election developments in Karnataka both in 2008 and 2018. In 2008, Yeddyurappa led the BJP to a spectacular show in the State Assembly polls but he ended up with 110 seats in the 224-member Assembly.

He was three short of a majority and he quickly made this up with the support of six independents. Also, in order to further strengthen his position, he launched “Operation Kamala” and got several MLAs of the Congress and the JD(S) to resign their seats and recontest on BJP tickets.

Several of them won, thus giving him the necessary cushion in the State Assembly. But 2018 is a different ball game. Yeddrurappa had 104, he was nine short of a majority and there were just two independents.

In order to repeat his 2008 feat, he would have had to entice a dozen or more MLAs of the Congress and JD(S) to resign their hard won seats and ensure their victory on a BJP ticket.

This would have thrown the BJP into a political quagmire and driven the party to a morally untenable position, weakened Prime Minister Narendra Modi and given his opponents a fresh rallying point.

However, this does not mean that the eventual outcome is what the doctor ordered. An unholy, unprincipled alliance between the Congress and the JD(S) was certainly not on the voters’ menu. This brings us to the issue of ensuring that there is no disjunction between the voters’ choice and the kind of Government that it eventually gets.

The National Commission to review the working of the Constitution (NCRWC), which was headed by Justice MN Venkatachaliah examined this issue in detail and said that the provisions of the Tenth Schedule of the Constitution should be amended “specifically to provide that all persons defecting — whether individually or in groups — from the party or the alliance of parties, on whose ticket they had been elected, must resign from their Parliamentary or Assembly seats and must contest fresh elections. The Government accepted the commission’s recommendation and brought the 91st amendment which barred splits. However, the commission’s suggestion in regard to sanctity of pre-poll alliances has not been implemented yet.

The Second Administrative Reforms Commission which was headed by M Veerappa Moily, said coalitions are necessitated by the fact that it is difficult today for a single party to obtain a clear majority in the legislature.

“In order to make coalitions legitimate, it is necessary for coalition partners to reach an understanding based on broad-based programmes…..Such an understanding needs to be translated into a common minimum programme and announced either prior to the election or before the formation of the coalition government.”

The Moily Commission said that the ethics of coalition Government become “seriously strained” when coalition partners change partnerships mid-stream and new coalitions are formed, “primarily driven by opportunism and craving for power…” It said “to maintain the will of the people , it is necessary to lay down an ethical framework to ensure that such exercises in opportunism, through redrawing of coalitions between elections, do not take place.”

The commission also recommended an amendment to the Constitution to ensure that members of a party or parties to a common programme mandated by the electorate either explicitly before the elections or implicitly while forming the Government, shall seek a fresh mandate from the electorate should the party or parties realign midstream with one or more parties outside the coalition.An extension of this argument would be that post-election bonhomie between parties which were at loggerheads with each other during the campaign, is also unethical. The people’s mandate must reflect in the process of Government formation.