Number game cannot avoid President's Rule
Adv
Cleofator Almedia Coutinho
3 August 2007
It is a replica
of what happened two years ago in the last Assembly. On 4 March 2005, Pratapsing
Rane government managed to win the confidence vote by 17-16, but only after then
speaker Francisco Sardinha restrained UGDP MLA Matanhy Saldhana from voting. In
spite of this, the central government imposed President's Rule by keeping the
Assembly under suspended animation. It was revoked only after the by-elections
were held in six constituencies, from where the Congress and BJP MLAs had resigned.
It
is a similar situation once again, when speaker Mr Rane has restrained two MGP
MLAs Sudin Dhavalikar and Dipak Dhavalikar as well as Congress MLA Victoria Fernandes
were restrained from voting on 29th July. The speaker has also certified that
chief minister Digambar Kamat has won the vote of confidence. What the Governor
has stated in his report to the union home ministry however is not known.
On
the other hand, Dhavalikar brothers have filed a petition in the Supreme Court,
challenging the speaker's decision to restrain them under the provisions of the
Anti-Defection Act. It would be heard on Monday, 6th August. The outcome of this
petition however may change the course of the government formation in the state
of Goa.
Meanwhile, there is lot of debate over imposition of President's
Rule in the State of Goa. Much of the desire for President Rule comes from the
fact that the public in general has not taken very kindly the destabilization
of the Kamat ministry before it could complete two months in office.
Secondly,
fact remains that the Kamat ministry hinges on the speaker's support on the floor
of the house. Unless the ruling party is in a position to shore up its numbers
in the immediate future, the union cabinet may be inclined to impose President's
Rule (outcome of the petition before the Supreme Court not withstanding).
In
number of cases involving smaller states like Meghalaya, Mizoram, Nagaland and
Goa, speakers' actions under the Anti Defection Act have led to the imposition
of President's Rule and dissolution of the State Assembly.
However after
the S R Bommai judgement in 1994, dissolution of the state assemblies has become
extremely difficult. The Assembly is being kept under suspended animation since
then because the dissolution is an irreversible process.
Imposition of
President's Rule without exploring the possibility of installing an alternative
government enjoying such support has also become difficult. It is in this context
that the outcome of the petition before the Supreme Court assumes significance.
However, even if the petitioners before the Supreme Court succeed, that may not
necessarily mean formation of an alternative government.
It may be recalled
that in 1967, when Shashikala Kakodkar lost majority, the rebel leader of the
MGP Shankar Laad and his group was not permitted to form the alternate ministry.
In fact, as early as in '60s, the Governor in his report to the centre had opined
that the ministry was seeking to maintain majority by dubious methods and had
thus brought 'democracy to ridicule'.
The question thus is in what manner
the majority has been bobbled up. It must be kept in mind that finally parliamentary
democracy functions on the will of the people. If the will of the people is sought
to be subverted by dubious means, then theoretically invocation of the President's
Rule can be justified on the grounds that temporarily a bigger democracy i.e.
the central government has to take over a smaller democracy i.e. the state government
to run it as per the mandate of the people. It's termed as Matsyanyay, where the
big fish eats the smaller one.
In fact, in S R Bommai case, Justice K. Ramaswamy,
while dealing with the floor test, was also of the opinion that the possibility
of 'horse-trading' has to be kept in mind having regard to the prevailing political
situation. He opined that the Governor should be left as the sole judge whether
or no conditions are conducive to resort to the floor test. The Governor should
also be left free to deal with the situation, keeping in view the Constitution
and the conventions.
It is a fact that the judges in the S R Bommai judgement
strongly opposed the head count by the Governor at Raj Bhavans. But they had also
sounded a note of caution like if because of violence, Governor comes to a conclusion
and records that the free vote is not possible in the house; the floor test may
not be the ultimate test. The question is 'free vote' and 'prevailing political
situation'.
It may also be noted that the very Bommai judgement upheld
the imposition of President's Rule in Madhya Pradesh, Himachal Pradesh and Rajasthan
for their contribution towards the demolition of the Babri Masjid at Ayodhya.
The court, after going to the circumstances leading to the demolition of the Masjid
and the covert stand of the ruling party in those states and ministers of those
states, held that there was enough material before the President to come to the
conclusion that the government in these three states could not be carried on in
accordance with the provisions of the Constitution. Basically, it was accepted
that the three states have failed to be in tune with the secular character of
the Constitution and the basic structure of the Indian political system.
In
the Bihar dissolution case, Justice K.G. Balakrishnan (presently the Chief Justice
of India), who was part of the majority in delivering the judgement while dealing
with alleged horse-trading and MLAs being won over by allurement, had the following
to say: "if by foul means the Government is formed, it cannot be said to
be a democratically elected government. If the Governor has got a reasonable apprehension
and reliable information that such unethical means are being adopted by the political
parties to get majority, they are certainly matters to be brought to the notice
of the President and at least they are not irrelevant matters.
Irrespective
of the outcome of the petition before the Supreme Court, what would be material
is what matter is brought to the notice of the President in invoking the President's
Rule, in case the central ministry wishes to invoke the President's Rule. The
Governor is not the decision-making authority. However, his report carries some
weight, but not necessarily.
The DMK ministry was dismissed despite Governor
S S Barnala refusing to send an adverse report against the then chief ministry
Karunanidhi. But then there ought to be some material before the President, which
forms the basis that the salient features of our Constitution are being subverted.
An
important aspect of the President's Rule is that the proclamation is subject to
judicial review and the courts shall scrutinise whether there is enough material
before the central government to come to a finding that the state cannot be run
as per the provisions of the Constitution.
Finally, parliamentary democracy
is not necessarily a number game at all times. No doubt numbers matter since the
council of ministers must be responsible to the house, which supports the ministry.
But numbers cannot come by dubious methods. Democracy cannot be sustained by unethical
and dubious means. In case the will of the people is subverted by methods spoken
about by present Chief Justice of India Justice K.G Balakrishnan in the Bihar
dissolution case, then the only consequence would be the President's Rule, which
may not necessarily come with the dissolution of the Assembly.
(The
writer is a former judge and a constitutional expert)
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