Law regarding political horse-trading in India

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After 15 months of ruling from its election in 2018, the Congress government headed by Kamal Nath in Madhya Pradesh collapsed as 22 sitting MLAs of the Congress resigned in support of Jyotiraditya Scindia who left the party earlier this month.

The question is what is the reason behind such mass resignations which decides the fate of elections bypassing people’s mandate? One can find the answers in ill practices that are adopted by various political parties in India. The opposite party tries to lure the legislators to act in a particular manner and do ‘bulk purchase’ of MLAs which results in Horse-trading.

What is ‘horse-trading’?

The expression “Aya Ram Gaya Ram” clearly points towards the situation of political Horse-trading in India. The term Horse-trading finds its roots back to 1967 when floor crossing and political horse-trading was at its zenith.  Horse-trading means when a political party tries to usher in members from the opposition party to realize the majority in the assembly and resort to unapproved techniques in doing so. The said party may offer financial benefits ministerial perks to lure opposing members.

It can be done in many ways such as either by wooing away as many legislators of any particular party as possible or by persuading the members to resign so that seats fall vacant. The benefit of this kind of practice is that such vacant seats aren’t counted for deciding relative strengths of parties and thus in this way, the balance can tilt in favor of another party.  

Though the acceptance of money by a legislator for doing any act on the floor of the house is not unconstitutional it is deemed to be highly unethical. The Cash for Query incident of 2005 reminds one of the influence of money and the extent to which legislators go to satiate their avarice.

Prevalence in India

The concept of Horse-trading in India started in 1967 when a legislator changed his party so frequently that folks called him Aya Ram Gaya Ram. He was a legislator of then Haryana Legislative Assembly who was elected on Congress ticket. He changed party thrice in a fortnight from Congress to Janata Party, back to Congress and then within nine hours to Janata Party again.

Since then, it has been observed numerous times in various state assemblies as well in Parliament. Some famous incidents are as follows: The coalition government of P V Narasimha Rao in 1993 was faced with a trust vote. The government managed to survive, with the backing from members of the Jharkhand Mukti Morcha (JMM) and the parting of Janata Dal (Ajit). The latter’s leader Ajit Singh himself withheld his vote. It was alleged that horse-trading had taken place to leverage the vote.

In 2019, the Congress government collapsed in Karnataka as at least 17 MLAs of the ruling party tendered their resignation and thus HD Kumaraswamy-led government found itself in the state of quandary and Yediyurappa of BJP party was crowned as the Chief Minister of the state. Such practice in Karnataka found a loophole in existing law where if any legislator resigns he can be re-elected as it is not covered under the purview of Anti-Defection Law.

The same technique of persuading MLAs for the resignation has been used in Madhya Pradesh recently.

Laws in India

The most important law to prevent horse-trading and widespread defection is Anti-Defection Law which is given under the 10th schedule of the Indian Constitution. It was inserted by 52nd Amendment in 1985 as a series of defections that happened after 1967 due to the increasing trend of forming coalition government which was formed of heterogeneous elements having very little or no ideological similarity. The schedule is connected to Article 102 and Article 191 of the Constitution which pertain to disqualification. This law aims to prevent defections and to ensure that legislators don’t switch parties for any personal benefits and also that they don’t violate the mandate of the respective party. Thus, it ensures party discipline.

This act prescribes the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. However, if at least two-thirds of the legislators leave the party to join another, they are not considered to have defected. The decision regarding disqualification lies with the Chairman or the Speaker of the House.

The law holds relevance because when a voter cast his vote for a candidate, he not only considers the candidate but also the party and the manifesto for which the candidate stands for. Hence, when the defection takes place it is the electorate that’s disappointed, making a mockery of democracy.

Landmark judgments

Earlier, the choice of the chair wasn’t subjected to the review by the courts. However, the Supreme Court in 1993, in Kihoto Hollohan V. Zachilhu held that this provision is unconstitutional as it seeks to take away the jurisdiction of the Supreme Court and High Courts and thus, now the decision is subject to judicial review. It simply means that the disqualification of a member can be challenged in a court of law.

In 1994 in the SR Bommai case, the SC had said, “There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs expressed the view which was opposed to the public posture of their leader and decided to support the formation of the government by the leader of another political party … many (other) imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to an assumption of allurement and horse-trading.”

Moreover, in 1994 in Ravi S. Naik v. Union of India, the Supreme Court has held that voluntarily giving up the membership is not the same as resigning from a party. The words “voluntarily giving up membership” connote a wider meaning. Inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.

Conclusion

Crossing the aisle has been a part of India’s post-election trend ever since the first elections. However, the law on defection certainly has been able to curb the evil of defection to a great extent. But, of course, a very disturbing trend of legislators defecting in ‘groups’ to another party in pursuit of greener pastures is apparent. The recent instances of defection in state Assemblies and even in Rajya Sabha substantiate this.

The Parliament should take into consideration the important suggestions as recommended by various committees and other eminent persons and cork the loopholes in the law. The issue of disqualification should be decided by the President or Governor on the advice of the Election Commission as advocated by Dinesh Goswami committee. Law Commission in its 170th report in 1999 has suggested that Political parties should limit the issuance of whips to instances only when the government is in danger. Apart from Supreme Court advocate Sanjay Hedge has advocated that Anti-Defection Law has outlived its utility and a major amendment should be made such as anybody who resigns as a legislator or Parliamentarian should be barred from contesting election for at least six years.

Only by considering such recommendations, the Indian politics can completely do away with the ill practices of Aya Ram Gaya Ram and horse-trading and will be able to give teeth to the Tenth Schedule.

Author: Vijay Lakshmi from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Tamanna Gupta from RGNUL, Patiala.

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