On the occasion of National Law Day, the Supreme Court has once again come to the rescue of our democratic polity. It is a triumph for the rule of law that the Governor’s decision to hastily put together a BJP-led government, based on an immoral arrangement side-stepping ground realities and the will of the people, was stopped in its tracks in Maharashtra by the SC Bench led by Justice N V Ramana.
The hurried closure of cases by the Maharashtra Anti-Corruption Bureau, most likely to woo NCP lawmakers who were facing corruption charges, and the ample time provided by the state’s Governor to Devendra Fadnavis to prove a majority in the House, which could have led to horse-trading—these would have certainly weighed on the minds of the honourable judges who ordered a floor test within 24 hours.
Fadnavis’s decision to resign rather than face the House clearly goes to prove such dishonourable intentions. Karnataka faced a similar situation in 2018, when B S Yediyurappa resigned as chief minister when faced with a floor test ordered by the SC. It is hoped that after such repeated misadventures, the BJP will allow democratically elected governments to function, and seek power through democratic processes rather than rely on rebellions similar to those seen in the Karnataka legislature.
The SC’s directions once again bring under sharp focus the role and misuse of the office of the Governor by the party at the helm in Delhi. The role of the Governor in appointing the Pro-Tem Speaker as per established legislative conventions will now come under sharp scrutiny. The Centre’s cloak-and-dagger political management makes us wonder if the BJP has resolved to follow the path laid by earlier Congress governments at the Centre of repeated and flagrant disregard for opposition governments, which led to the SC’s landmark judgment in S R Bommai v. Union of India (1994). In that case, the top court laid down the criteria for invoking President’s rule under Article 356, and inter alia stated that sufficient material should be available before a decision to invoke the Article is taken, as per consultation with the council of ministers.
The judgment, along with the recommendations of the Sarkaria Commission (1987) and successive judicial pronouncements, clearly laid down the procedure to be followed by the President and the Governor when there is a crisis in the formation of governments in states. The power conferred by the President under Article 356 is a conditional power exercised after satisfaction of the Governor’s report which is to be based on relevant material, and is subject to judicial review.
However, the decision to revoke President’s Rule in the wee hours of November 23 was not taken by the Union Cabinet as the PM purportedly invoked Rule 12 of the Government of India (Transaction of Business Rules), 1961. Clearly, the intent of the legislature in providing for such rules is to enable the exercise of executive functions of the government in exigencies, but only in accordance with the Constitution as interpreted by our courts from time to time. Such a questionable exercise under the said rule has gone against the spirit of the ruling in the S R Bommai case. Invoking or revoking of President’s Rule without the recommendation of the Union Cabinet headed by the PM creates a bad precedent.
Pre-poll and post-poll alliances entered into by political parties are par for the course. The Governor initially did follow the procedures laid out by first inviting the leader of the party with the most seats, followed by laying the field open for other claimants. But by conducting a near-clandestine swearing-in of the BJP’s chief ministerial candidate, in one fell swoop, the Centre, through the Governor, has yet again negated the Governor’s earlier actions and thrown to the winds the Sarkaria
Commission Report’s recommendations and subsequent judicial pronouncements. Such moves create doubts in the minds of the public that the Centre’s actions may be more in furtherance of its
political motives than executive function.
Political parties, especially the BJP, must realise that the overwhelming mandate given to them is also a result of decades of frustration with the underhanded and unconstitutional tactics deployed by the Congress—against which civil society, student bodies, lawyers, political activists and political parties including the BJP have carried out constant struggles to uphold our Constitution. It is these political struggles that laid the foundation for non-Congress governments at the Centre, starting with the Janata Party in 1977.
The BJP must therefore act in a manner that respects the democratic mandate given to them by the people, and respect their desire for democratic pluralism. With such political manoeuvres one may “win” a state in the short-term but will ultimately lose the nation’s confidence and respect.
The misuse and improper exercise of the constitutional provisions by the party in power at the Centre once again calls for a stronger movement by intellectuals, advocates, political parties and the public at large to protect, strengthen and deepen democratic principles.
There is no disputing that a strong Centre is essential for a strong country. However, under the scheme of our Constitution, the states are considered supreme in their own right. Nurturing of federalist values and not trampling upon the constitutional guarantees provided to them are critical ingredients for the development and prosperity of any nation state. To borrow Lord Acton’s famous words, “Power tends to corrupt and absolute power corrupts absolutely. … Great men are almost always bad men.” We must be eternally vigilant against absolute mandates corrupting our Constitution, and save great men from bad actions in law and political ethics.
B Vinod Kumar
Vice-Chairman of the Telangana State Planning Commission
Email: vinodkumarboianapalli@yahoo.com