HVK Archives: Constitution held to ransom
Constitution held to ransom - The Hindu
Rajeev Dhavan
()
11 April 1997
Title : Constitution held to ransom
Author : Rajeev Dhavan
Publication : The Hindu
Date : April 11, 1997
Watched through the lens of the media, the Indian democracy is fast
becoming a spectator sport. A nation of a near-billion people
which went to the polls last year is on the brink of doing so
again. why? In the absence of a genuine democracy within the
political parties, one man - Mr. Sitaram Kesri - has decided to
fend for himself at a time an important budget has to be passed and
the nation pulled together.
That the decision was undemocratic is evident from the senior
Congressman Mr. Sharad Pawar's earlier reaction that Mr. Kesri's
statement was a "bolt from the blue." But, even on its merits, Mr.
Kesri's letter to the President of March 30, 1997, withdrawing
support to the United Front Government, astounds rather than
impresses. Claiming support from two Congress Working Committee
(CWC) decisions of November 4, 1996 and February 16, 1997, the
President was told that Mr. Narasimha Rao's letter of support to
the United Front of May 13, 1996 was being withdrawn because the
latter was not co-operating with the Congress on elections, not
listening to Mr. Kesri and had driven the country into a breakdown
of law and order and an increase of communalism. The real purpose
was to effect a leadership change, to remove Mr. Deve Gowda and
instal Mr. Kesri.
The letter exudes political greed rather than national concern. We
have seen the Congress do this before to the Charan Singh (1979)
and the Chandra Shekhar (1991) Governments. Unable to win
elections, the Congress's self-defined role is now to broker crises
to fuel the personal ambition of a few, irrespective of the
fortunes of the party or the nation. Even if a court of law is
reticent to pronounce on questions of political morality. democracy
cannot be reduced to unprincipled opportunism. Norms must be
evolved.
The first question is: what is the status of Mr. Kesri's letter to
the President? The answer has to be considered in the light Of
three similar incidents in the States which led to the downfall of
Mr. Mulayam Singh in U.P., the BJP Government in Gujarat and N. T.
Rama Rao in Andhra Pradesh in 1995-96. The
constitutionally-subversive technique of creating an imbalance
consists of striking during an inter-session or when there is a
legislative lull. The sole intent of such letters is to create
instability. Nothing prevents any party leader from tabling a no
confidence motion if he has the political courage to do so. The
Kesri style letters are in lieu of no-confidence motions. Their
intent is to force the President to force his Prime Minister to
invite a no-confidence motion against himself. Such letters are a
fraud on the Constitution, a cheap and convenient way of getting
rid of a government with the unwitting connivance of the President.
Secondly, what should the President have done? Consistent with the
principles of parliamentary government and separation of powers,
the President could simply have thanked Mr. Kesri for having
apprised him of the situation and left it to the Congress leader to
table a no-confidence motion if the latter wanted to test the
Government's majority.
By asking the U.F. to prove its majority, the President, in fact,
fell into Mr. Kesri's trap of forcing Mr. Gowda to invite his own
harakiri. The budget session was still on. Mr. Kesri should have
gone to Parliament, not to the President. Even by precipitating a
confidence motion, the President usurped the functions of
Parliament and created a backdoor method of toppling the
Government. That this has happened before at the Centre and in
various States is no reason for constituting such unwholesome
tactics into a constitutional practice.
Thirdly, this chain of events has long-term implications for not
just the minorities and coalitions, but all governments. If this
kind of indirect subversion of governance is permitted, greedy
politicians have only to wait for the legislature to be
out-of-session: and, then, move the President or the Governor to
put his own Prime Minister or Chief Minister in political limbo.
No minority government will ever be able to survive if this
happens. Opposition leaders may be reluctant to table
no-confidence motions: but they have little choice but to oppose
(or abstain from) confidence motions.
This entire practice of forcing confidence motions is invidious and
weakens the already vulnerable governments. Since the era of
coalitions is upon us, we need to think through these practices;
and make the floor of Parliament the sole determinant of even the
question whether there should be a no confidence motion at all. It
is not for the President to direct confidence motions.
Fourthly, it is about time we developed an Instrument of
Instructions for the exercise of Presidential discretion. This
existed in the Government of India Act, 1935 and the Draft versions
of the Constitution, but was dropped because it was felt that
Indian Politicians would be mature enough to evolve sensible
practices. This assumption has been belied by our politicians.
But the present crisis cannot be determined by future statements of
principle. For the moment, it is clear that the President has no
intention of exercising his doubtful power of sacking Mr. Gowda.
The invidious practice of the President dismissing the Prime
Minister has flowered in Pakistan, was blessed by the Privy Council
for Nigeria in 1963, but not followed in Malaysia in 1966.
Indian practice suggests that only the loss of confidence on the
floor of the House empowers such dismissal, although the U.F.
Government in Bengal in 1967 and Mr. Mulayam Singh's Government in
U.P. in 1995 were dismissed (and Rama Rao was forced into
resignation in 1995) because they wanted more time to meet the
legislature. Within the reasonable limits of at least a few weeks,
such time should be granted. Its refusal constitutes pressure
tactics. This is not the situation in our present controversies.
But it is useful to emphasise the principle that dismissal without
the loss of a confidence motion is not permissible.
But, what will happen if Mr. Gowda wants to dissolve the House to
appeal to the people? Normally, requests for dissolution are
readily granted. Harold Wilson was granted dissolution after eight
months of rule in 1974. Dissolutions denied in Canada in 1926 and
South Africa in 1939-40: and, indeed, in India by the Governors in
Haryana, Punjab. Bihar and U.P. in 1967-68, Orissa, Gujarat, Bihar
and Punjab in 1971 and U.P. in 1995. While normally bound by his
Prime Minister's advice to dissolve the House, the President may
refuse dissolution if he feels (i) there is still a viable
Parliament capable of doing its job: (ii) the possibility of a
Prime Minister with a working (as opposed to absolute) majority and
(iii) that another general election would not be good for the
national economy.
On the basis of this, the President must explore further
possibilities. But, he cannot simply refuse dissolution and hand
over government to the largest single party irrespective of its
working majority. If these three conditions are not satisfied, a
dissolution with the defeated Prime Minister as the head will
become inevitable. The question of a national government led by
the President or the Vice-President does not arise. That would be
tantamount to imposing an Emergency of the kinds often imposed in
Pakistan.
Our politicians are too ambitious to be sensible, too greedy to be
principled, too crafty to be honourable and too shortsighted to lay
the foundations of good governance. At present, politics in India
is neither an art nor science, neither an avocation nor a
profession. It corrupts the nation's soul and fatigues its
capacity for democracy.
We need to rethink how the demands of stability and democracy can
be reconciled. Instruments of Instructions may limit political
malpractice as the Anti-Defection law has done to a limited extent.
If all this fails, we will have to think through a new system. But
evolving a consensus for change may itself be difficult. Neither
Sita nor Ram nor Kesri has at least reminded us of our fragility.
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