New Delhi: Indian politics reached a new peak—or low—this week when the Janata Dal (Secular), or JD(S), helped pull the Karnataka government down after its demand that coalition partner Bharatiya Janata Party (BJP) sign a legal memorandum of understanding (MoU) to jointly govern the state was turned down.
Even in India, where written common minimum programme agreements between coalition partners are increasingly the norm, it appears to be the first time that a political party has insisted on written guarantees—on stamp paper, no less—for how the two sides would split specific ministries, much like a joint venture or pre-merger agreement in the corporate world.
Though it didn’t work—the political drama ended when BJP chief minister B.S. Yeddyurappa resigned after a week in office, unwilling to sign the MoU and unable to muster enough support without JD(S)—bemused political observers and legal experts see it as a clumsy attempt to cobble together a legally binding governance pact.
They seem to suggest that the legal validity of a political MoU is as sacrosanct as the fictional tale of Shylock’s contract with Antonio for a pound of his flesh for defaulting a loan in the Shakespeare classic, Merchant of Venice.
“It wasn’t mutual suspicion and mistrust among the JD(S) and the BJP so much as a lack of honour among thieves,” says political commentator B.G. Verghese. “Both parties were only after the loaves and fishes of office.”
“In a democracy, perceptions are different in a marketplace of ideas,” says Harish Salve, a veteran Supreme Court lawyer. “So, a common minimum programme is a set of mutually binding priorities for which the only other alternative is anarchy. But it is sick to suggest an MoU.”
Not least because these types of MoUs won’t be legally enforceable, says Salve. “Such an MoU is not valid,” he says. “Is political power a property you can buy and sell? By suggesting an MoU, it is an admission of the political class that political power is an item of trade or barter. Can one ever govern a country through a contract? An MoU would grossly violate public interest.”
Similarly, Pratap Bhanu Mehta, president of the Centre for Policy Research, a New Delhi-based think tank, says: “The issue of its legal sanctity apart, the MoU would have violated the democratic process. What would happen if a minister were implicated in wrongdoing at a later stage? Would the chief minister do nothing just because the MoU says the portfolio should remain with the other party? In any case, why didn’t Deve Gowda ask for an MoU when his son was installed chief minister?”
Legal experts also note that when conditions stipulated in a formal contract are aimed at satisfying selfish interests to serve power politics, the contract goes against public policy and interest, and is, therefore, unlawful.
Arun Jaitley, a lawyer as well as member of BJP, which turned down the suggestion, adds: “The underlying factor is public credibility. This is not a matter of legally enforceable contracts, but about morally acceptable conduct.”
Shahid Siddiqui, a Rajya Sabha member of the Samajwadi Party, which has ample experience of coalition governments in Uttar Pradesh, is much more vocal on this issue.
“I have been a student of coalition politics over the past 30 years and I believe coalition governments have strengthened democracy,” he says. “However, I feel ashamed as a parliamentarian about what has happened in Karnataka. Trust, and mutual trust alone, can be the basis for coalitions. Politics is not a business that you should require MoUs between two partners. But if a politician becomes shameless and doesn’t abide by the norms of democracy, no MoU can make the politician fit for a democracy.”
Some lawyers can see how political parties would want to put everything on paper. K.K. Venugopal, another veteran lawyer, says: “The Constitution does not provide any procedure in this regard, but reducing agendas into writing has become the practical necessity of the day as they provide more stability.”