Unlike Goa, with no souls on immediate sale in Karnataka, the coup staged by political thugs through the governor could not last more than two days. When president Shankar Dayal Sharma created an unprecedented situation of swearing in Atal Behari Vajpayee as a PM, his action gave a clear room for suspicion. It is now the historical fact that president Sharma was entirely in the wrong in his assessment of who commands majority in the House. The Vajpayee government bowed out in 13 days. When I.K. Gujral became the PM, president Narayanan made sure that he commanded a majority in the house. Even VP Singh got sworn by president Venkataraman after confirming that supporting parties shall provide the cushion of majority.
After enactment of anti-defection law and more particularly after doing away with the ‘split’, the discretion of the presidents and the governors ought to be minimal. In case of hung parliament or assembly, the ‘letters of support’ concept brought in by president Narayana was almost becoming a rule minimizing governors’ discretion and giving legitimacy to the political parties as against individual MLAs’ wishes and desires. The S.R. Bommai judgement of 1994 also attempted to bring down the discretion of the governors. In case of a post-poll coalition as against the single largest party, the former had to prevail, as the government must command majority in the House. Anything else would be subversion of parliamentary system.
Since 2014 in their search for ‘Congress Mukht Bharat’ strange rules are being propounded. Justice K.M. Joseph as CJ of Himachal Pradesh HC created a unprecedented precedent of bringing to life a dismissed Congress government of Harish Rawat. The Supreme Court also had to deal with a strange situation created by the dismissal of the Arunachal government when SC was seized of the matter. What happened in Goa and Manipur is now history. To a question as to how 104 could become 112 the answer ‘we have Amit Shah’ showed the arrogance and scant respect for propriety. It was a case of attempted political thuggery. See how they eyed. A former AG appearing for B.S. Yedurappa had the gumption to tell the court ‘we shall show our numbers in the House’. And finally the present AG of India who represents the country pleaded for a secret ballot for a confidence vote something unheard of.
When the Constitution was formulated the framers may not have visualized that persons holding high constitutional post would not mind making mince meat of every possible law and institution in their endeavour to get power. At that time some discretion was kept with offices like the President or the Governor hoping that the discretion would be judiciously exercised. The discretion was in keeping with the high constitutional office. For hundreds of years such discretion has indeed flowered English parliamentary democracy. There may be no instances when the king acted malafide. There may be no instances of irrational or unreasonable actions. There may be instances of error of judgement. Even such errors have been critically examined. Here in India, based on same conventions, democracy is sought to be subverted.
After 67 years, our parliamentary system has become a laughing stock. How could it be that a PM has to quit within 13 days in office or a PM like Charan Singh recommends dissolution of the House, without facing the House or a Chief Minister quits office within 2 days for failure to command majority. We have seen how the Speakers of various Vidhan Sabhas have played havoc with the parliamentary system trying to cobble up majority for the chief minister. In 2018 the only answer the present ruling establishment gives us is the conduct of the past government in the seventies of the last century. Our democracy has fallen from frying pan into fire.
The Karnataka fiasco provides us with yet another opportunity to iron out all creases by minimizing discretion by framing rules over appointment of CMs or PM and avoid the Karnataka-type shameful spectacles. The governor’s discretion in the choice of the CM in case of a hung assembly must be circumscribed with clear rules so that the lawns of Raj Bhavan are not used to manipulate the system. Both the ruling party and opposition must come together to give a boost to the anti defection law by removing the speakers as the adjudicatory authority. The country has no confidence in the speakers as adjudicators.
Though all is not well with the higher judiciary, there can be no doubt that the Supreme Court rose to the occasion and acquitted itself in the Karnataka crises, redeeming the lost honor & glory. Every institution, the election commission in particular must function with minimum discretion as discretion is biggest element of mal governance.
Dr. Ambedkar was criticized for including finer details in the constitution. He justified them by quoting the famous Greek historian Grote “where the generality of the people are not saturated with the spirit of constitutional morality, no constitution could afford to leave out the details”. Ambedkar questioned back ‘do the people of India have constitutional morality?
Imagine our fate had certain final details not come into our constitution. Today we find that the finer details introduced by Dr. Ambedkar are not enough and there is a need to provide further details clearly circumscribing the discretion of authorities like the governor, speaker and the election commission. The Karnataka fiasco has highlighted the urgent need to protect the country from becoming constitution Mukht Bharat.
(The writer is practicing advocate)
