This article is written by Yashika Goplani and Prakarti Shrivastava from Dharmashastra National Law University, Jabalpur.
India is a constitutional democracy with a parliamentary system of government, and at the heart of the system is a commitment to hold regular, free and fair elections. Elections are the foundation of any democracy in the world. In India, as many as 15 LokSabha elections have taken place, the first one being in 1951-52. India according to its Constitution follows universal adult suffrage, where every citizen above the age of 18 is eligible to vote.The current scenario of politics suggests that people are more educated in terms of making a decision to choose a government. The elections following 2017 have shown that the voters of India are clearly able to distinguish between the politics of the state and the national politics.
Majority rules system has given individuals a powerful right that is to VOTE. Casting a ballot is the crucial premise of a democracy, “Of the people, for the people, and by the people” as said by Abraham Lincoln. In this way, as opposed to getting a charge out of it as a vacation, one must cast a ballot on the chance that he genuinely needs to add to the country building process and realize a change. A citizen ought to really not have to discover any motivation to vote. It must be carried out as a habitual obligation despite the fact that there is no legitimate commitment to cast a ballot.
Going with the trend it can be seen that post poll alliances have become more popular than pre-poll alliances. As John Dalberg-Acton has very well said that, “Power corrupts and absolute power corrupts absolutely”, and going by this quote it can be seen that the greed for power is causing a lot of harm to our country. This is indeed playing with the stability of India leading to a downfall in the political spirit of the states.
“Each of the parties within the alliance has its own policies but chooses temporarily to put aside differences in favour of common goals and ideology in order to pool their voters’ support and get elected”.
Rule of law is the essence of a functioning democracy. Democracy as a tool has been hijacked a lot of times as a legitimising weapon by authoritarian powers. But Rule by law is a direct harm to the very foundation of democracy. India being a constitutional democracy has to ensure that there is rule of law and not rule by law and therefore in our opinion the post-poll alliances should become invalid so as to protect the constitutional norms.
From Rule of Law to Rule by Law
“The rule of law has become a global ideal and aspiration. It is supported by people, governments and organizations around the world. It is widely believed to be the cornerstone of national political and legal systems.” Rule of law basically means and ensures that the citizens as well as the government should abide by the laws of the country. A country not running per se Rule of law means it is following Rule by Law.
Rule by law is something where the law serves as a tool for the government. Post –poll alliances are alliances which are formed when a single political party has not attained a majority and therefore to gain power they either compromise with their ideologies or their motives. “One of the functions of rule of law is to Impose Legal Restraints on Government officials, in two different ways:
A) By requiring compliance with existing law; and
B) By imposing legal limits on Law-Making Power”.
Considering this point from the elections point of view would be that the parties contesting elections are in a way officials and it is assumed that they will work according to the law and even the moral conduct of the society. This is a common view that if a person is awarded with a fundamental right then it should be respected. Article-326 of the Indian Constitution guarantees this right to every citizen above the age of 18 years and therefore every vote casted is of significant value. When the government validated Post-Poll alliances it directly diminished the value of votes casted, as a voter voted for party A and since it got the highest number of votes but didn’t get a majority, so party B alliance with Party C and ultimately came to power. This showed that even after having the highest number of votes party A didn’t come to rule.
The function aforementioned should be followed so that the basic human right provided to every citizen should be complied with post-poll alliance to be considered unconstitutional.
“As a policy-maker, on the other hand, the politician may have to take a different position. There are situations where an absence of law is a defect, a weakness, a danger, an undesirable state of affairs from the perspective of the rule of law”. As there is no law regarding the post-poll alliances it is causing a hindrance in the working of the country’s development. The Karnataka elections is the best example where the Congress party formed a coalition government with Janata Dal (JD) and the end results are clearly visible leading to conflicts of interest because of the difference in their ideology.
One of the elements of rule of law is that laws must avoid contradictions but what the authors’ are considering is that giving people the right to vote and at the same time not nullifying the post-poll alliance is a contraction putting a question over the importance of votes. “When parties that fight each other bitterly form alliances, it is only one thing — a breach of voters’ trust. It is for this reason that post-poll alliances should not be encouraged.”
“In a democracy no one is above the law, not even a king or an elected President. This is called the rule of law. It means that everyone must obey the law and be held accountable if they violate it. Democracy also insists that the law be equally, fairly and consistently enforced. This is sometimes referred to as due process of law.” When we talk about post poll alliances the same features of democracy seems to be absent. There are some aspects which cannot be neglected and Rule by Law is one of them. One cannot think that the country should follow rule by law just because of some people begging for power and holding positions.
Post poll alliances: A challenge to democracy
“Indian Constitution declares itself as democratic republic. The Supreme Court of India has recognized ‘democracy’ as one of the basic features not amenable to abrogation. Fundamental Rights and the Directive Principles of the constitution can be seen as the human rights conscience of our Constitution.” The following are some of the basic principles of democracy which are clearly violated by post poll alliances.
Citizen Participation and Representation
A lawyer represents a client when he or she acts in place of or for the client. Similarly, in democracy through direct elections the citizens of the country choose their representatives who work for them. “Participation is the key role of citizens in democracy. It is not only their right, but it is their duty. Participation builds a better democracy.” When we consider post poll alliance in a democracy, it points out the other way against representation in the sense that the party which was elected by the citizens does not come into power. This results in breach of trust of the voters as it works against their will diluting the basic essence of democracy. To stand by the principles of the democracy in a country, the authors believe that post poll alliances should be regulated by forming a law against them. It is hence recommended that to control the voters’ psychology in the near future and to not reduce the participation of the citizens, it should be held in their benefit that pre post alliances should be declared mandatory.
Transparency and Accountability
“For government to be accountable the people must be aware of what is happening in the country. This is referred to as transparency in government. A transparent government holds public meetings and allows citizens to attend. In a democracy, the press and the people are able to get information about what decisions are being made, by whom and why.” Manifestos of different parties play an important role for them in coming into power because it in a way describes the functions and missions of the party. Transparency even displays the accountability which that party will hold after coming into power to its citizens. “Officials must make decisions and perform their duties according to the will and wishes of the people, not for themselves.” Post poll alliances are a violation of this principle as the greed of power makes parties with different ideologies come together just for themselves and not for the country leading to disastrous situations in the state.
Control of abuse of power
“Democracy is free and fair elections, but much more: those who call the shots in the world of government and business are kept on their toes, honest and humble, making sure their greed for power doesn’t ruin the lives of citizens.” Political parties which represent the people in a democracy are nowadays pulling every possible string to gain power, even if it requires them to shake hands with their long time rival parties.
“When political parties opt for alliances, it is to win an election, and if post poll, to come to power by cobbling together the numbers to secure a majority.” It has now become a feature of Indian politics where these political institutions cover the ill-wills, corruption and greed for power in the name of post poll alliances. “It is not that multi-party system, electoral competition, the separation of powers, the rule of law, and so on, is democratic because they are what so-called “democracies” do. It is because they have been proven over time to be necessary mechanisms to secure the continuing popular control and public accountability of government.” The practice of formation of post poll alliances which are nothing but a tactic used by parties to gain power is depreciating the value of the above mentioned mechanisms which are necessary for the survival of a healthy democratic culture in a country.
Alliances of rivals: Threat to the present and future of democracy In India
The Supreme Court while quashing the petitions expressed its inability to “step- in” and act against the practice of post poll alliances. But it is a fact that these alliances where parties forge an alliance with the sole purpose of gaining power is casting a shadow on the integrity of the electoral process and on the basic principles of the democracy, especially in cases where parties with opposite ideologies choose to form an alliance fulfilling their greed for power.
Problems created by formation of post poll alliances
“The will of the people shall be the basis of the authority of government: this will, shall be expressed in periodic and genuine election which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”. The importance of respecting the will of the people in forming the government is clearly one of the most basic forms of accountability that need to be shown by the people in power to maintain the core essence of democracy. But we are moving towards a system where there is a breach of people’s trust, incessant greed for power, higher probability of factionalism among the political institutions and a threat to the growth of democracy, evident from the existence of political chaos in states like Maharashtra, Madhya Pradesh, and Karnataka etc.
The reason for the existing political scenario in the country is the formation of alliances after the elections resulting in the undervaluation of the mandate and betrayal of trust of the voters. The structure of post poll alliance has its weakness, which can only be touched upon because they are subject to the future of Indian democracy. Whereas on one hand this practice questions the ethical, moral and practical aspects of India’s democratic structure, and on the other it poses threats on the constitutionality of the whole concept of formation of political alliance.
The behavior of voters in India is influenced by a number of factors and one of them is their expectation from the party whose ideologies impresses them the most, to fulfil the promises made by them. But after the results of the election, when the government is formed by the alliance of the parties who are rivals before the elections, it amounts to the breach of voters trust and a mockery of public mandate.
Indian electoral politics, starting from the period of 1989 has been characterized with the acceptance and evolution of alliance politics. But evidence suggests that this practice which was started with the purpose of representing the will of the broader section of the society is now becoming a way for the political parties to go against the will of the larger section of the society by devaluing their precious votes.
The post poll alliance has been experienced in India at the centre level first time in 1989 after the ninth general election of lok sabha and the reason behind the introduction of this kind of arrangement was the fading trust of people on the parties which was evident from the fact that no party came close to the 263 seats required for a majority, raising the prospect of a formal coalition for the first time. This resulted in the formation of a government led by the national front in coalition with five other parties with the support of BJP and communist, but unfortunately the alliance could not hold up for long and was replaced by another group of parties trying to gain power and disrespecting the will of the people. This marked the beginning of the politics of alliance endangering the stability in the political system of the country.
Democracy cannot be restricted to mere casting of vote and formation of government; it is also about the trust among the voters of an electorate that the mandate given by them will be reflected in the government formed after elections. In 2019 two ‘pre-poll alliances’ fought the elections in the state of Maharashtra, the first being BJP and Shiv Sena and the other being the NCP and INC. The alliance of BJP and Shiv Sena managed to gain majority by winning 105 and 56 seats respectively, representing the will of the larger section of the society. By undermining the value of the votes of the people of the state, the two long-time rivals formed an alliance and managed to form their government in the state. “The political manoeuvring by parties in Maharashtra appears demeaning to the aspirations of states people”. This event has left us with certain questions on the present and future condition of democratic structure of the country.
The Supreme Court stated that “the freedom of voting is distinct from right to vote and is a species of freedom of expression and carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom”. The intention behind giving this right to the citizens is to effectively implement their right to vote which is the basic postulate of democracy and which requires the formulation of opinion about the candidates. But what is the use of knowing about a candidate and voting on the basis of that information, when the government is formed not based on the will of the voters but on the will of the political parties? What is the use of giving a right to vote when no value is given to that vote? Justice Ramana pointed out that “in democracy we can’t curtail parties to form alliances” but considering the present situation, democracy will not exist if this unlimited freedom of political parties is not regulated because if not, it will reduce the people- who are the crux of the democracy- to the mere recipient of the immoral practice of formation of alliance between the parties who fought the elections against each other.
As post poll alliances are becoming inevitable in the Indian electoral politics where parties with completely different ideologies and agendas are joining hands to form a government, the chances of factionalism among the political parties is increasing. “Factionalism can affect the stability and institutionalization of parties and party systems and it can impact on the efficiency and legitimacy of political parties and political systems as a whole.”
The post poll alliances formed in the recent times are nothing more than an “alliance for convenience” where parties with diametrically opposite election manifestos and ideologies come together to share power. It increases the probability of unceasing conflicts between the parties in alliance which could be based on variety of factors such as conflicting ideologies and agendas, as experienced “in the last assembly election in Maharashtra, the BJP formed a post-poll alliance with the Shiv Sena; in Jammu and Kashmir, the BJP allied with the PDP post-elections; and in Haryana, the BJP got Dushyant Chautala into its crew after the results.” Internal factionalism in the parties in power is a constant threat to the stability of the government.
‘Coalitions have become a political necessity in India today. It will not take a long time, not less than 25 years to develop a two party system in India.’ As a matter of fact these coalitions have developed into the ‘opportunistic post poll alliance’ which is a step forward toward the end of multiparty system which is the essence of Indian democracy. Coalition is made up of democratically elected representatives, but in itself, it is a way to grab power regardless of the verdict of the electorate. ‘Coalition politics is merely a partisan grab to capitalise on a political crisis. Forming alliances is filled with challenges and each coalition member suffers from insecurities regarding the alliance. Further, citizens also cannot be sure when the coalition government will give way and leave them in a state of political anarchy.’
Anti Defection Law: A way forward
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 formed after the results are in. With the enactment of a fifty second constitutional amendment act in 1985, we constitutionally restricted a legislator from leaving his ‘original party’ with certain exceptions. “The amendment was introduced with the objective of curbing the evil of political defection motivated by the lure of office and other similar considerations that endangers the foundation of democracy”. But unfortunately this law has not been effectively successful in attaining its objective. The pattern that has been seen in recent years calls for certain reforms in the anti defection law with respect to the post poll alliances which are “endangering the foundations of democracy”.
“Anyone dealing with this subject agrees that ‘defections flout people’s mandate and cannot and should not be permitted neither singly nor in a group” and analyzing the present situation it should also not be permitted for the political parties to form alliances after the mandate. To curb the unlimited freedom of political parties in the subject of formation of alliance there is a need to broadly interpret the meaning of political parties defined in schedule tenth of Indian constitution. The law commission in its 170th report came up with the recommendation that the definition of “original political party” mentioned in schedule tenth of the constitution of India should be substituted with a broader definition which defines the term as: “political party” in relation to a member of a house, means the political party on whose ticket that member was elected and where such political party is a part of a front or a coalition formed before a general election for contesting such election. This definition also does not cover the scenario of alliances, fronts or coalitions which are formed after elections and are completely based on convenience. Therefore the authors believe that there is a need to first incorporate the political parties formed after making an alliance after the elections in the definition of political parties to initiate an action against the formation of “unholy alliances” as experienced in the states of Maharashtra and Karnataka.
“Political defections are, of course, neither new nor unique to India”. But the nature of defection has changed with the passage of time which necessitates the modification in the laws regulating this practice. The law was framed with the motive to stop politicians like Gaya Lal who was switching parties three times within the same day shuttling between the congress and the janata party from bringing instability in the political system.
But the present situation proves that “the unscrupulous Political bosses no longer consider it shameful to split and re-split parties or leap and embrace a rival political party in order to grab ministerial berths”.Therefore, after experiencing the situation that aroused in Maharashtra, the authors believes that there is need to expand the ambit of schedule 10th of the constitution of India by incorporating provisions which restricts the parties from forming an ‘alliance of convenience’ i.e. restricting parties who initially drew swords against each other from forming alliance after the announcement of the results.
To regulate the formation of post poll alliance it is important implement the recommendation given by Dinesh Goswami Committee on Electoral Reforms in 1990 saying that “the power of deciding the legal issue of disqualification should not be left to the Speaker or Chairman of the House but to the President or the Governor, as the case may be, who shall act on the advice of the Election Commission, to whom the question should be referred for determination as in the case of any other post-election disqualification of a Member”. The formation of a post poll alliance should be restricted to the parties who are not contesting elections against each other and the power of deciding on this issue should also be rested in the hands of the president or governor who will act on the advice of the election commission.
It has been seen that the laws often concentrate more on the members of the party and do not take into account the whole political party which is trying to gain power by merging with the party against whom it is fighting the elections. But it is also a fact that the “constitution provides for an indirect or representative democracy which mandates the existence of a wide range of political parties”, and these political parties are an essential element of this democratic structure where they have the freedom of forming an alliance in order to run the government. But a freedom can be enjoyed to the extent where it is not curbing the freedom of the other section of the society and it is the time when there is a need to restrict the freedom of the political parties of forming ‘coalitions of convenience’ which is limiting the freedom of voting of the citizens. Also giving political parties’ unlimited freedom will prohibit the basic reason and objective behind the formation of anti defection law which says that “the evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it.”
Conclusion and Suggestion
“Democracy is a universally recognised ideal as well as a goal, which is based on common values shared by peoples throughout the world community irrespective of cultural, political, social and economic differences. It is thus a basic right of citizenship to be exercised under conditions of freedom, equality, transparency and responsibility, with due respect for the plurality of views, and in the interest of the polity.” And to maintain the sanctity and interest of democracy it is important to recognize the practice of formation of post poll alliances of convenience as harm to the very spirit of the democracy.
The constitutionality of post poll alliances need to be scrutinized as it could harm the future of democracy. When parties form alliances by compromising their ideologies with the single motive of coming into power, it not only results in the betrayal of peoples trust but also leads to ineffectiveness of the system in the country. Petitioners have argued that as a voter we have an absolute right to know, before we cast our ‘precious’ vote, which parties have agreed on forming an alliance and thus the government if they secure a majority. When parties who were fighting against each other in the elections formed an alliance with each other agreeing on sharing power, it could lead to horse trading and other corrupt practices. It should be noted that in a democracy, proper representation is of utmost importance and post poll alliances injure this very important principle of democracy.
To restrict the unlimited power given to the political parties on the subject of formation of alliances and restrict them from misusing this freedom it is important to take certain actions against this practice. The authors suggest that there is a need to form regulations to disclose the information regarding the probable post poll alliances by the election commission of India. We also suggest that there is a need of effective implementation of anti defection law which should prohibit the formation of opportunistic alliances or alliances of convenience or alliances formed by the parties who fought against each other in elections having completely opposite ideologies and agendas.
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