Who will pass Goa budget ?
Cleofato Almeida Coutinho &
Prabhakar Timblo
1 March 2002
Goa, known throughout the world as the
tiny paradise on earth, has never lagged behind in carving
a special niche in the political firmament of India. The
local politicians made the maximum misuse of the anti-defection
act and the common man was frustrated with the political
instability which engulfed the ‘intellectual’ State during
the span of the last five years. The State has also the
dubious distinction of the maximum disqualification petitions
against the members of the State Assembly gathering dust
in the auspicious chamber of the Speaker for nearly twelve
months. And now, the IITian Manohar Parrikar pulled the
ace by recommending to the Governor to dissolve the State
Assembly. This master stroke was an unexpected slap on the
face of the neo-saffronites and pulled the rug beneath the
40 Ali Babas couched in the New Assembly Complex.
On receipt of the recommendation from the
Council of Ministers, the Governor invoked the powers under
Article 174(2)(b) of the Indian Constitution and dissolved
the State Assembly. Though, the Governor has been criticized
in some quarters for the action, it is our submission that
the Governor has exercised the power judiciously and no
malafide can be attributed. As a general rule, the Governor
is bound by the advice of the Council of Ministers. Though,
the position of the Governor is different from that of the
President in the sense that the Governor has a discretion,
the question of exercising discretion arises in case the
advice of the Council of Ministers vacillates against the
provisions of law and the constitution. Further, the Governor
is not bound by the advice of the Council of Ministers in
case the Ministry has lost the majority support or in case
a motion of no-confidence has been moved against the Chief
Minister and his Council. Here, was a situation wherein
the Council of Ministers enjoying the full confidence of
the House recommended that the House be dissolved.
In India, the President has followed this
convention and has dissolved Lok Sabha in 1971 and 1979
even when the Prime Minister recommending the dissolution
did not have confidence of the House. It could be argued
that in the year 1971, no alternative was forthcoming and
hence the House could not be kept in suspended animation.
In 1979, a clear alternative under the leadership of Jagjivan
Ram was emerging. However, the President accepted the advice
of the Prime Minister who never faced the House. In 1984,
the then Prime Minister Rajiv Gandhi went for early elections
despite having not completed the full five-year term and
there was no threat to his ministry. Obviously, he wanted
to cash on the sympathy built in the country after the death
of Mrs. Gandhi.
Another issue which is being debated is
that the Governor could have exercised the option of sending
a report to the President for imposition of Central Rule
under Article 356(1) of the Constitution. To our mind, though
this option can be exercised, in the instant case, there
was nothing on record or otherwise to show the "failure
of constitutional machinery". Article 356 is invoked
when the existing government has lost majority support and
an alternative government cannot be formed or installed.
When the majority of the House supports the Council of Ministers,
the question of the Governor scouting or hunting for an
alternative government does not arise. There are rumors
that a ‘group of seven’ was in waiting. However, the Governor
is not supposed to peep behind the curtains. Though, over
72 hours have lapsed after the decision, no Minister from
the Council of Ministers has said anything to the contrary.
No group has approached the Governor expressing no-confidence
in the Council headed by Manohar Parrikar.
As per the British Parliamentary conventions,
the King would not refuse to grant a dissolution. This convention
is dependent on another convention that there would not
be an unreasonable demand for a dissolution from the Prime
Minister. This implies that the Crown can refuse the demand,
if it finds that the demand is unreasonable. As an instance,
if after a fresh elections to the Parliament/Assembly, the
Prime Minister/Chief Minister after winning the vote of
confidence, immediately makes a demand for dissolution,
it may be unreasonable. However, considering the backdrop
of defections and counter-defections and further the shadow
of threatened defections looming in the corridors of Adil
Shah palace, it would be fit to consider the demand for
dissolution as reasonable. The opposition has been crying
hoarse that the BJP has no mandate to rule. The media has
been always projecting that the government is seated on
the top of the needle.
The President and the Governors are not
men of straw, they have or should have the capacity of fair
judgement. In such matters, the Courts have no right to
interfere, since these are issues of political expediency
and subjective satisfaction. Courts may interfere in case
of malafide use, not otherwise. Being full aware of the
Goan political situation, malafide cannot be imputed. Though,
the position of imposition of Presidents’ rule in States
has now been made clear by the Bommai judgement, there are
no directions or parameters within which a Governor shall
act when advised by the Chief Minister to dissolve the House.
The President of India had appointed a committee to go into
the Governors powers. This committee was of Governors themselves,
and the committee had reported as under:
"If a Chief Minister who enjoys majority
support advises dissolution, the Governor must accept the
advice, but if he advises dissolution after losing the majority,
the governor need accept the advice only if the Ministry
suffers a defeat on question of major policy and the Chief
Minister wishes to appeal to the electorate for a mandate
on the policy. In the case of a Chief Minister heading a
single party government which has been returned by the electorate
in absolute majority, if the ruling party loses its majority
because of defection by a few members, and the Chief Minister
recommends dissolution so as to enable him to make a fresh
appeal to the electorate, the Governor may grant a dissolution…".
The report also talks about the Governor taking decision
after exploring all options in a multi-party system.
Since the financial year has come to a
close, another issue debated is whether the Parliament can
pass the State budget since the State is not under Central
Rule.
The provisions of the Constitution governing
this matter are Articles 248, 249 and 357. Article 357 can
be resorted to only if the State is under Presidents’ rule.
The budget of a State under the Presidents’ rule is presented
to the Lok Sabha and may be passed. For this, the proclamation
should be issued under Article 356. The budget is to be
presented for the whole year and the vote on account should
be taken for a specific period since no one expects the
State to be without a popular and representative government.
It is very clear that the Lok Sabha has the power to make
laws for the State only if the State is under the Central
rule. This provision cannot be invoked since Goa is presently
not under Presidents’ rule and hence the Parliament is not
competent to legislate.
Article 248 deals with the power to make
any law including imposing a tax on any item not enumerated
in the Concurrent or State List. This is a residuary power.
This cannot be invoked to pass the budget or financial bills
of a State since this entry stands enumerated in the State
List. Article 248 is to deal with unlisted entries or subjects.
This is to be done as the ‘last refuge’.
To our mind, for passing of the budget
which is of paramount necessity since there cannot be taxation
or spending without Parliamentary sanction either the State
would have to be brought under Presidents’ Rule or the powers
under Article 249 will have to be invoked.
Under Article 249, Parliament has power
to legislate in respect of a State subject in the "national
interest" provided the Rajya Sabha declares by a resolution
supported by two-thirds majority of the members present
and voting that it is necessary and expedient that the Parliament
should make law. This provision under the Indian Constitution
has no parallel in any other constitution and has been incorporated
to tide over a temporary situation.
