Democracy is on sale. Turns out it's also affordable. MLAs ferried in buses and locked in resorts. Each time there is a fractured mandate, the aftermath gets uglier.
"MLA shopping", "resort politics", "Operation Kamala" — there aren't enough names and expressions, apprehensions and persuasions to describe the current scenario following the split mandate in Karnataka.
If horse-trading is betrayal of people's mandate, there seems to be no force — courts, election commission, president or any other agency — capable of stopping political parties from betraying the voters.
Even though the media, civil society and a few opposition parties (depending on their political convenience) may criticise and desperately look for ways to stop the menace of poaching and "buying and selling" of MLAs, truth be told, even the law at present is ill-equipped to deal with it.
If it's about one MLA or MP and it has been established that he has abused his position as a public servant, then there is a possibility of prosecuting that legislator under anti-corruption laws in the country. However, broad allegations and statements that are so brazenly made in the world of politics are very difficult to establish in the court of law. Remember the 2G scam where the prosecution agencies could not establish any money trail and all accused were acquitted.
Can't miss this bus: Congress MLAs on their way to Hyderabad. [Photo credit: Ashish Pandey]
While we have many precedents pertaining to the powers of the president of India or the role of the governor while imposing President's rule, the law pertaining to the powers of a governor during the formation of a government is relatively less defined. This specific law which pertains to the role of the governor during the formation of the government is yet to be explored by the courts.
Neither the SR Bommai versus Union of India (1994) nor the Nabam Rebia and Bamang Felix versus Deputy Speaker (Arunachal Pradesh, 2016) — one of the most recent instances wherein the scope and limits of gubernatorial discretion was re-examined by the Supreme Court — are enough to guide how the governor should exercise his discretion while appointing a government.
Articles 163 and164 grant powers to the governor and his wisdom which is backed by Constituent Assembly debates. The above two judgments are an extensive precedent on the relations of the Centre and state and how the president should exercise his special powers. The Nabam Rebia judgment does lay down that the governors must act in a non-partisan manner, but this proposition has not been developed by legal authority or any Constitution bench judgment with respect to formation of the government.
While the judgment of the Supreme Court in Nabam Rebia (2016) case — where the apex court "turned the clock back" and restored the Congress government — delves deeply as to how the governor should handle a case of constitutional crisis, there is no guiding case on who the governor should appoint to form the government in case of a fractured or unclear mandate.
In the name of people: Congress-JD(S) lawmakers protest against BS Yeddyurappa's swearing-in as CM, in Bangalore on May 17. [Credit: Reuters photo]
If one goes back to the Constituent Assembly debates, there is a detailed discussion on the discretionary powers of the governor. Dr BR Ambedkar thought the governor should be vested with this limited discretion.
The governor's office is expected to exercise constitutional and political morality because it's an office that by far is beyond the purview of the courts.
Although the decisions of the governor are open to judicial review, the governor himself can’t be a party before the court. While the court ensures the "rule of law", higher offices like that of the president, vice-president and governor discharge constitutional morality and our system expects these functionaries to work in this fashion.
A trend started by the Congress party openly misusing the office of the governor for political purposes since the 1970s has come back to haunt them and taken a dangerous turn, because there is literally no institution in our democracy that can stop this.
While the court may call for an early floor test in Karnataka, how does one stop the naked display of power, money and muscle politics?
Tenth schedule and lacunae in law
There are more hiccups and bigger lacunae. According to the 10th Schedule of the Constitution, a legislator losing his membership on account of defection is not barred from re-contesting elections.
Defection is not an offence under the Representation of People Act, 1951. It doesn't lead to a member getting debarred from contesting elections. One could argue, that this lacuna in law has been exploited by all political parties. The Constitution left it to the discretion of the electorate whether a member should be re-elected or not.
It was left to the public to decide whether it was "right" for a legislator to defect or to cross vote in the first place.
But in a country where elections are dominated by caste, religion, money and muscle power, such "poetic justice" must not be expected through electoral process.
Recent state elections have seen that how despite cross-voting and defection, legislators have been elected back to the Assembly from the different political parties.
The ongoing drama in Karnataka once again underlines the fact that courts have no means to prevent poaching or horse-trading. Individual cases can be tried under the Anti-Corruption Act or the IPC, but there is no legislative or judicial wisdom or precedent to avoid such "resort politics" situations in the first place.
An essential argument could be to bring this offence under the Representation of People’s Act, 1951, which may lead to disqualification of legislators from contesting elections. However, even this change of law won't be without its share of controversy. This will require a serious legislative approach and a broad political consensus — something that's part of political maturity which is currently missing in Indian polity.
In absence of this, a time will come when the courts will be forced to encroach upon this territory and lay down the law. This anticipated judicial interference may be a very reactionary approach and not the healthiest in a democracy. But then democracy, as we all have come to know, has been long dead.