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Friday, Feb 18, 2005

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A crisis made to measure

By Rajeev Dhavan

If Governor S.C. Jamir was suspicious about the confidence vote in the Goa Assembly, he could have discussed the matter with Chief Minister Manohar Parrikar. At best, he could have prorogued the House and asked for a fresh motion of confidence.

GOA'S GOVERNANCE has had more than its tale of woe. Since 1963, Goa has known 24 administrations — including President's Rule in 1990-1991 and 1999. During 1963-1990, Goa was ruled by three Chief Ministers. Since 2005, there have been 14 Chief Ministers. In the earlier crisis of 1990, Speaker Luis Barbosa led seven Assembly members out of the ruling party to become Chief Minister himself, resulting in proceedings in the Supreme Court. In December 1990, the Barbosa Government fell. The Speaker, S.V. Sirsat, disqualified two legislators — a decision upheld by the Supreme Court in the Ravi Naik case (1994). In January 1991, Speaker Sirsat disqualified Mr. Naik from the membership of the House. He was removed from the post of Speaker. His decision was reversed by the Deputy Speaker who was told by the Supreme Court in the K.G. Jhalmi case (1993) that he had no inherent powers to review the earlier decision.

Unfortunately, Goa is not the only State where Speakers have exercised their extraordinary powers extraordinarily. In 1965, the Speaker of the Uttar Pradesh Assembly summoned judges of the High Court to answer a case for contempt. In 1968, the Speaker of the Punjab Assembly adjourned the House to prevent the State's budget being passed. Following the Anti-Defection constitutional amendment of 1985, Speakers virtually have unbridled powers to determine `defection' cases, which they have exercised amidst controversy in Mizoram (1988), Goa (1990-1991) and Nagaland (1990). In 1993, the Manipur Speaker claimed immunity from a Supreme Court order but fortunately relented to avoid a major crisis. In 1997, there was a major crisis in Uttar Pradesh which reached the Supreme Court.

In the past, following the principles of comity, the Supreme Court has expressed reluctance to interfere with the Speakers' decisions. But in the Uttar Pradesh case there was a sharp division between Justice K.T. Thomas who felt that the Speaker's decision was perverse and Justice M. Srinivasan who felt that the Court's jurisdiction was limited. The matter was referred to a Constitution Bench where it has become infructuous. Undoubtedly, Speakers can unsettle constitutional governance. By the time the courts intervene, governments have changed hands many times over.

The present Goa crisis articulates all the ills of parliamentary democracy in India. On January 29, 2005, Congress MP Churchill Alemao made a prophetic statement that his party would topple the incumbent Goa Government in 24 hours. In a democracy, governance is to be won by fair means, not by unfair toppling. The Kerala Government was toppled in 1959 alleging a breakdown of law and order. After 1967, government after government fell due to defections, the imposition of President's Rule or both. Although strengthened in 2003, the Anti-Defection law of 1985 has made little difference. Toppling a government simply to grab power is an invidious constitutional practice — irrespective of which political party practises it. In this, all Indian political parties are guilty — no less the BJP which was victim of the Congress' ploy in Goa.

By playing political algebra, by January 31, the Congress convinced Governor S.C. Jamir that the BJP-led Government of Chief Minister Manohar Parrikar had lost its majority. Indian governance has gone astray in making the Raj Bhavan the arbiter of whether a government has a majority in the Assembly. Once a Parliament or Assembly is constituted and a government sworn in, no President or Governor should force a newly elected government to seek a vote of confidence. A vote of confidence invites instant hara-kiri. Surely, it is for the Opposition to table a motion of no-confidence.

Unfortunately, Indian constitutional practice permits the Governor to force incumbent governments to invite a vote of confidence rather than wait for a no-confidence motion from the Opposition. Raj Bhavans create instability. Even if newly elected governments of doubtful majority should seek a vote of confidence immediately after being sworn in, this cannot apply to incumbent governments. An Opposition wanting to topple a government should have the courage to table a motion of no-confidence on the floor of the House. It should not rush to the Governor to seek his assistance to do so. What has made Raj Bhavans the site of deals and counter-deals is their power to order confidence motions under threat of dismissal. Governors should simply tell defectors and Opposition parties not to soil the Raj Bhavan with their politics but to fight it out in the Assembly.

Governors should not force Chief Ministers into confidence motions under threat of dismissal. Governor Dharam Vira of West Bengal was wrong to do so in 1967, when he eventually dismissed Ajoy Mukherjee's Government. A similar pressure by Governor Motilal Vohra led to Mulayam Singh's dismissal as the Chief Minister of Uttar Pradesh in 1995. Further examples abound. Governor Jamir should have assumed that the Parrikar Government had a majority until he was defeated on the floor of the House by a no-confidence motion. He should simply have sent the dissidents and the Opposition packing from the Raj Bhavan to field their grievances in the Assembly. But once a Raj Bhavan becomes a hotbed of politics, there is no stopping it. Governor Jamir is himself a seasoned politician — not unfamiliar with the debris of toppled governments.

In 1988-1989, President's Rule was imposed in Nagaland, the Assembly was dissolved and Mr. Jamir emerged as the victorious Chief Minister after the elections. But in 1990, Governor M.M. Thomas dismissed Mr. Jamir from office — denying him even the right to show his strength in the Assembly. In 1992, Governor Thomas drew the curtains on Mr. Vamuzo's Government to impose President's Rule resulting in elections — from which Mr. Jamir again returned victorious in 1993. Mr. Jamir had been both the victim and indirect beneficiary of suspect exercises of gubernatorial power.

When Mr. Parrikar faced the Assembly, there was considerable confusion. Politics had begun to oil the confidence vote. The better view is that the Speaker was probably wrong and acted in a partisan manner in throwing MLA Filipe Neri Rodrigues out of the House before the voting process. But around 5-00 pm on February 2, 2005, there was an alleged vote which the Parrikar Government won by 17 votes to 6. Then there was pandemonium. The Assembly was adjourned at 5-40 p.m. Surprisingly, around 6-10 p.m., Governor Jamir dismissed Chief Minister Parrikar's BJP-led Government to install a Congress-led Government of Pratapsinh Rane who, in turn, has been given 30 days to prove his majority. Even if we leave aside the allegations that Congressmen camping in the Raj Bhavan engineered this dismissal, Governor Jamir's one-line order of dismissal of a government without even hearing Mr. Parrikar who had proved his majority is indefensible.

No Governor can overturn the decision of a Speaker who is no less a constitutional authority than the Governor himself. It is only the courts that have judicial review over a Speaker's ruling. The haste with which the dismissal was effected seems partisan. If the Governor was suspicious, he could have discussed the matter with Mr. Parrikar. At best, he could have prorogued the House and asked for a fresh motion of confidence.

Despite the exhortations of the Bhagwan Sahay Committee (1972), the Sarkaria Commission (1988) and the Constitution Commission (2002) that placing good people in charge of governance will solve India's constitutional ills, this has not happened. Indian politics is run on the basis of unprincipled opportunism. No Constitution can function without an inner institutional morality. Perhaps, the Constitution-makers were wrong in not incorporating an Instrument of Instructions for making Indian governance work.

To some extent, the Supreme Court laid down some ground rules in the Bommai case (1993) to ensure that the floor of the House, and not the corridors of Raj Bhavans, determine the fate of governments. The Supreme Court could be asked to lay down a code for these situations in the Goa case or its advisory jurisdiction. Governors must be appointed from a panel approved by a presidential or legislative committee. Determining anti-defection cases should be taken away from the Speaker and reposed in an independent body — even the Election Commission. Governors and Speakers should be de-barred from further public office.

The power of Governors to order confidence motions from incumbent governments should be taken away so that Raj Bhavans do not become mini-legislatures for toppling governments.

If the Goa crisis does not shock us, it is because we have become accustomed to such abuses of power. But if nothing is done, worse will follow. Parliamentary democracy was devised for good governance, not as a charter for the unscrupulous to grab power by any or all means.

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