Shiv Sena-NCP-Congress alliance in Maharashtra: To counter unethical post-poll alliances, scope of anti-defection law needs widening

  • The question before the Supreme Court is whether these alliances are permissible under the constitutional scheme and not contrary to the democratic ethos

  • The whole gamut of democratic politics revolves around the informed choices made by voters

  • In cases of post-poll alliances, those who have been rejected by voters come into government and make efforts to further their policies that have been discarded by the public

After the NCP, Congress Party and Shiv Sena announced their alliance, certain voters moved to Supreme Court to stop the 'unholy alliance' (as termed by them) since it defeats the electoral mandates. In recent times, as the mandate turns increasingly fractured, post-poll alliances have become inevitable in electoral politics. In the last Assembly election in Maharashtra, the BJP formed a post-poll alliance with the Shiv Sena.

In the north, in the erstwhile state of Jammu and Kashmir, the BJP allied with the PDP post-election, and in Haryana, the saffron party brought Dushyant Chautala into its fold after the results of the election. These are a handful of instances where parties who initially drew swords against each other, entered into post-poll alliances. It has been debated for a long time that the abject immorality of alliances between parties who fought elections against each other in elections must be scrutinised and discouraged. In any democracy, people vote on the basis of their ideology, the manifesto of parties and promises. So when two contesting parties enter into alliance to form government it has a nullifying effect over the voters' preference for a certain party.

Now the question before the Supreme Court is whether these alliances are permissible under the constitutional scheme and not contrary to the democratic ethos. It's worth pondering whether the framers of the Constitution intended on accommodating such coalitions? There is no doubt that the laws dealing with elections must be construed in such a manner that enhances the efficiency and morality of the parliamentary democratic system. The whole gamut of democratic politics revolves around the informed choices made by voters. In cases of post-poll alliances, those who have been rejected by voters come into government and make efforts to further their policies that have been discarded by the public.

 Shiv Sena-NCP-Congress alliance in Maharashtra: To counter unethical post-poll alliances, scope of anti-defection law needs widening

NCP supremo Sharad Pawar addresses MLAs at the show of strength in Mumbai's Grand Hyatt hotel. ANI

In cases of pre-poll alliances, the parties function as a single unit with defined ideologies and policy objectives that have been mutually agreed upon by the parties of that alliance. The partners do not contest elections against each other. Their cadres and volunteers work for the coalition and not just their individual parties. The voters, arguably, vote for a set agenda and political ideology on whose premise the edifice of both the party and the coalition rest. The coming together of two or more parties and the agenda set by them is the basis on which voters decide whether to vote for the particular alliance or not.

Hence, it is need of the hour that the definition of the party under the anti-defection law and Constitution must be construed in broad manner so that the objective of the 10th Schedule gets accomplished. To make informed choices, the voters should know who they are voting for and in cases of post-poll alliances, this very foundational aspect of democratic politics is compromised.

The democratic principles are the essence of the representation of will of the people that justifies the need for, and existence of, a representative government that symbolises the rule by many in constitutional democratic perspectives, or, in other words, the rule of the majority in the political community as a whole including its various sections, classes and groups.

The term 'democracy' postulates that form of government in which the governance is constitutionally conducted, broad-based and doesn't concern itself with any particular class, group or obligation. In the absence of unanimity, social consensus provides the basis of all democratic governments. Proverbially, it is the government of the people, for the people and by the people. This government by the people is carried on by the representatives of the people chosen by the election. Moreover, in a republic, State sovereignty is vested in, and held by the people and political power is exercised popularly as an expression of the people's sovereignty, command, grace or pleasure.

The Constitution is adopted and given to themselves by the people. The Constitution of India has been adopted, enacted and given "To ourselves" by "We, the people". The supreme political power is held by the whole polity, the political community — the people's will. The Constitution was enacted by the chosen representation of the people assembled in Constituent Assembly or convention in the name of the people and for the people.

It was thought by the Constituent Assembly that its intention in this respect should be made manifest in the preambulary declarations of the Constitution. A common feature between parliamentary democracy and constitutional democracy is that both acknowledge that government rests upon the consent of the governed, given by means of elections based on universal and equal suffrage. However, parliamentary democracy may or may not be a constitutional democracy as well.

As a general proposition, it may be said that parliamentary democracy is more likely to be practiced by states with a parliamentary system of a government. Since the emerging Indian political framework of post-poll alliances is neither democratic nor in conformity with the spirit of the Constitution, there must be a legal framework devised by the Supreme Court to prevent unethical alliances that the majority did not vote for.

The court must understand that the political associations post-elections that would have attracted disapproval from voters had they been in the picture in the first place, are tantamount to violence against the ethos of the Constitution. The law preventing unethical post-poll alliances must be evolved in accordance with the principles that underpin anti-defection laws. There is a need to widen the scope of the meaning of 'party'.

In Kihoto Hollohan versus Zaichillhu, the Supreme Court observed that a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and the concerted actions of its members in furtherance of those commonly-held principles. 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.

Intra-party debates are of course a different thing. But a public image of disparate stands by members of the same political party is not looked upon, in political tradition, as a desirable state of affairs. The court further held that the objective of the incorporation of the 10th Schedule is to curb the evil of political defections motivated by the lure of office or other similar considerations that endanger the foundations of democracy. The remedy proposed is to disqualify the member of either House of Parliament or state legislature who is found to have defected from continuing as a member of the House.

Hence, post-poll alliances on similar principles must be guarded by courts by expanding the ambit of the 10th Schedule.

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Updated Date: Nov 28, 2019 09:25:08 IST