Would the opposition presidential candidate win if there were no Article 70?

Bangladesh's presidential election on 20 August is shaping up as a contest in which the result appears known before a single ballot is cast. The BNP, which commands 247 of the 349 elected seats in parliament and more than a two-thirds majority with its allies, has nominated its veteran secretary general, Mirza Fakhrul Islam Alamgir. The opposition 11-party alliance has nominated veteran politician and decorated Liberation War hero Colonel Oli Ahmad Bir Bikram.

The opposition says, however, that this need not have been a foregone conclusion. Its argument is that if the July National Charter had been implemented, particularly the proposed reform of Article 70, MPs would have been free to vote according to their own judgement in a presidential election. In that scenario, it argues, Oli Ahmad could have defeated Mirza Fakhrul.

There is an important democratic principle behind that argument. But there is also a rather large gap between theoretically possible and politically plausible. This is where India provides an instructive comparison.

India has a constitutional mechanism that Bangladesh's July Charter proposes to move towards. It is the anti-defection law does not apply to presidential elections.

The Election Commission of India explicitly states that members of the presidential electoral college may vote according to their wishes and are not bound by party whips. Yet this freedom has almost never produced the kind of upset now being imagined in Bangladesh. In their history since 1947, only once the ruling party candidate failed to win. The most important exception came 57 years ago, when he lost to a rebel independent candidate.

The curious case of V V Giri

The 1969 Indian presidential election remains the classic example of how a ruling party's candidate can lose despite commanding enormous political strength. But even that episode is frequently misunderstood. It was not primarily an opposition victory. It was a civil war within the ruling Congress.

President Zakir Husain died in office in May 1969, forcing an early presidential election. Prime Minister Indira Gandhi was already locked in a bitter power struggle with the group of senior Congress leaders known as the 'Syndicate'. The Syndicate controlled much of the party organisation and backed Neelam Sanjiva Reddy as the official Congress candidate.

V V Giri. Photo: Wikimedia Commons

Indira Gandhi did not accept that choice. Vice-President V V Giri resigned and entered the race as an independent candidate. Gandhi initially kept her support relatively discreet, but she eventually called upon Congress legislators to vote according to their 'conscience'. The message was unmistakable that they were free to disregard the party establishment's candidate.

And they did. Giri defeated Reddy in a remarkably close contest, winning 420,077 votes to Reddy's 405,427 after the transfer of second-preference votes.

The consequences were enormous. The Syndicate expelled Indira Gandhi from Congress, and the party formally split into Congress (Organisation) and Congress (Requisitionists). The presidential election was therefore not simply an example of legislators suddenly discovering their independence. It was the battlefield on which an already raging struggle for control of India's ruling party was settled.

And is shows the political reality that even though secret voting removes the legal penalty for defection, it does not remove the political consequences.

The opposition's argument that Article 70 reform would make such an outcome possible is therefore correct in a narrow constitutional sense. But saying that MPs would be legally free to cross-vote is not the same as saying that dozens of them would actually do so.