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Elections are any country’s largest democratic exercise. The recent Maharashtra State Assembly elections and the formation of the State Government proved eventful for voters and contesting parties alike.
The Bhartiya Janata Party (BJP) and the Shiv Sena had concluded the State Assembly elections together as the National Democratic Alliance (NDA), which won a large majority of 161 out of the 288 seats. Yet, 20 days later, we find political vacuum.
The Shiv Sena was a natural ally of the BJP, given their mutual faith in Hindutva and its ideals. Conflict in this alliance was unlikely, especially post-election. However, the uncanny silence in the Assembly after the electoral verdict casts a shadow of doubt in the minds of the populace.
Negotiations between the parties had failed since the regional party coveted a rotational post of Chief Minister and an equal share in the final government, which has not gone down well with the BJP. As a result, on November 10th, the BJP announced its inability to form the Government. Shiv Sena’s Uddhav Thackeray decided to withdraw from the NDA, and form the government by itself on 11th November 2019.
Maharashtra government in process:
The dissolution of the NDA negatively impacted both constituent parties, neither having enough seats on their own to satisfy the required majority number of 145. What ensued was petty mudslinging among the two parties, frantic speculation of horse-trading and an overall political upheaval in the State. To bring some order in the chaos, the President’s rule was imposed in the State on 12th November 2019, as provided by Article 356(1) of the Indian Constitution.
In cases of such Presidential rule, the Centre takes administrative control of the State, and all executive decisions are taken by the Centrally appointed governor. The Chief Minister is dethroned and the State Assembly is dissolved. After Maharashtra’s political breakdown, the central government appointed Bharat Singh Koshiyari as the Governor.
The presidential rule can be imposed in a State for 6 months, during which parties can attempt to form a government with the required majority. Before taking over the administration of the State completely, the Governor first aids such formation of the State government.
Koshiyari, in this case, first approached the party with the largest seats, i.e. the BJP-Shiv Sena coalition, asking them to resolve their differences and form the government. When the two parties refused to cave in, the Governor moved on to other parties and independent candidates, stating the possibility of government formation and advising in favour of an alliance for the same. But the attempts of the Governor were in vain, as no party or coalition had come forward to stake claim for government formation.
The legality of Aaya Ram Gaya Ram:
The recent events in the Maharashtra government formation showed a recurrence of the infamous ‘Aaya Ram Gaya Ram’ phenomenon, popularised in 1967 by Gaya Lal of the Haryana State Assembly, who switched parties thrice in one day. This phenomenon seems to have surfaced again; elected Members of the Legislative Assembly (MLA) switch parties at the drop of a hat, citing ideological contradictions.
In reality, the corrupt practice of horse-trading involves buying and selling MLAs for money, the value of the MLA depending on his/her popularity, i.e. the number of votes.
By way of a Constitutional Amendment in 1985, the law of anti-defection was introduced as the Tenth Schedule in the Indian Constitution. This law allowed the disqualification of legislators on the ground of defection. A legislator is deemed to have defected when he either voluntary gives up his membership of that party or he disobeys the directive of the party leader.
The phrase ‘voluntarily gives up his membership’ was interpreted by the Supreme Court as having a wider scope than mere resignation. In the 1996 case of G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly and the 2007 case of Rajendra Singh Rana v. Swami Prasad Maurya and ors., this phrase was interpreted to mean that members who have publicly denounced their own party or expressed support for another party.
The phenomenon of horse-trading involves the purchase and sale of MLAs, much like the trade of the equine asset itself. The member with the greatest number of votes is valued at the highest price, the one with the next highest vote count the next highest price, and so on. Thus, elected members of one political party are bought by another, and the MLA becomes a member of the new political party and embodies that party’s ideological manifesto.
The political immorality of horse-trading is that members are elected for the party that they were in support of, and seldom for their own qualities. The practice has been invalidated by the anti-defection law, yet it is prevalent.
The trade-off between democracy and horse-trading:
Regardless of the illegality of horse-trading, it has been accepted as a common practice in politics, a necessary condition for State governance. Allegations of political immorality finds consonance with former US President Theodore Roosevelt’s infamous quote, “In politics, we have to do great many things that we ought not to do.”
This quote essentially acts as a get-out-of-jail-free card to politicians engaging in horse-trading. However, horse-trading is not merely something that governments ‘ought not to do’. It should be absolutely restricted, as it essentially involves placing a price tag on people’s votes, thereby devaluing democracy.
Speaking on the rampant horse-trading that took place after the failed Karnataka State Assembly elections in 2018, the Indian National Congress (INC) general secretary Priyanka Gandhi Vadra quoted;
“…the citizens of our country will have to endure their (BJP’s) unbridled corruption, the systematic dismantling of institutions that protect the people’s interests and the weakening of a democracy that took decades of toil and sacrifice to build.”
Voters placed the mandate for forming the government on the NDA alliance, and not the BJP nor the Shiv Sena independently. The majority achieved by way of horse-trading misses the point of such majority- that they were not elected by the people.
This is because the people place more faith in the propaganda of a political party than an individual candidate. If the candidate were to profess his faith to one party’s ideology and switch to a completely different one after election, any election in the first place would be pointless.
The objective of an election in a democratic country such as ours is to ensure that the elected persons are in fact representatives of the people. The phenomenon of horse-trading misses the point of elections and democracy entirely.
Demolish the Stable?
What is the solution? A fresh election should be conducted, in light of the recent fallout of the NDA. People should be given the opportunity to cast vote in light of this new information, since they had cast their vote for a BJP-Sena alliance governing the State, and not a haphazard mix of scattered Sena MLAs with the Congress and NCP.
A fresh election would nullify the defect caused by the dissolution of the NDA and the subsequent horse-trading, thereby securing the norms and values of democracy and political representation.
–This article is brought to you in collaboration with Anna J. Kallivayalil from National Law University, Delhi.