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Friday, Mar 04, 2005

Opinion

Opinion - Leader Page Articles

Choosing Chief Ministers

By Rajeev Dhavan

Political parties should refrain from bringing constitutional governance to a halt simply because the Governor's discretion was not exercised in their favour.

DEMOCRACY CANNOT survive if unelected State Governors play games with post-election scenarios to please the party in power at the Centre that appointed them to office. The practice was evident in the aftermath of the general elections in 1967, when Governor after Governor used his discretion to choose Chief Ministers. In 2005, such abuse of power by Governors is once again being called into question. On February 2, 2005, Goa Governor S.C. Jamir sacked Chief Minister Manohar Parrikar in doubtful circumstances to peremptorily install the Congress in power. Now suspicion is being cast on the way Governors are handling post-election claims by parties to form governments in Jharkhand and Bihar.

Politically, all these manoeuvres are part of a larger canvas. The Congress is part of a secular front that does not want to see the Bharatiya Janata Party return to power — either at the Centre or in any of the States. Having lost power at the Centre in 2004, it is imperative for the BJP to re-capture power in as many States as possible to build a national image to return to power at the Centre. It is relatively easy to analyse our present discontents in consequentialist terms.

Politically, it is a straight choice between the secular front and the non-secular BJP alternative. The secular front accuses the BJP and its supporters of exploiting communal sentiments to capture power — most recently in Gujarat and elsewhere in 2002-2003. For those who support the secular front over communal alternatives, keeping the BJP and its allies out of power represents the triumph of secularism, which is basic to the Constitution.

However, such a consequentialist approach undermines rather than fulfils the goals of the Constitution. After 1967, Congress Governors played havoc with the constitutional enterprise. The worst example was that of Governor Sampuranand who, in 1967, refused to recognise a United Front post-poll alliance in Rajasthan and gave preference to the Congress which did not have a clear majority. After this, few Governors have concerned themselves with constitutional propriety.

Governor Dharam Vira of West Bengal sacked Chief Minister Ajoy Mukherjee because he wanted to face a confidence vote 19 days later than the date suggested by the Governor. No amount of criticism of such gubernatorial actions remedies the situation. Political convenience triumphed over constitutional principles.

It was thought that matters might get better after the Supreme Court judgment in the S.R. Bommai case (1993). It laid down that the correct procedure was to test the majority of a government on the floor of the legislature. But there was no respite from political subterfuge. A disagreement between Governor Motilal Vora and Chief Minister Mulayam Singh over the date of the confidence vote led to the latter's dismissal in 1995. In 1996, Governor Romesh Bhandari refused to allow the BJP, as the largest party, to form a government in Uttar Pradesh and President's Rule was imposed to further throttle democracy.

The elections in Bihar and Jharkhand have once again thrown up challenges for the Governors of these States. The result in Haryana is abundantly clear. Having won 67 of the 90 seats, the Congress has a clear majority and has been called to form the government. In Bihar, no party has a clear majority. The single largest party remains Lalu Prasad's Rashtriya Janata Dal with 74 seats as against the Janata Dal (United)'s 55, the LJP's 30 and the BJP's 38. If some old English and Indian precedents of the 1960s were to be followed, the single largest party should be asked to form the government. But these precedents have no meaning today. Likewise, no significance attaches to whether an alliance was pre-poll or post-poll for the purpose of deciding who should be the Chief Minister.

The reason for this is obvious. Under the Constitution, the Chief Minister has to be shown as enjoying the confidence of the Lower House after the election. In the confidence vote, no distinction is made on the basis of a pre-poll or post-poll alliance. To introduce such a distinction for consideration by the Governor when it is irrelevant to the floor test in the Assembly is unhelpful and pointless. It follows that the BJP's absolute claim to form a government in Bihar is incomplete and falsely premised. Whichever party can show an actual majority in Bihar can claim the right to form a government. This remains to be determined by Governor Buta Singh. For the BJP to cry foul before it can establish a clear majority seems unfounded except to create a political noise.In Bihar, the key to the numbers game lies with Ram Vilas Paswan, leader of the Lok Jan Shakti Party, who can make or break any claim from maturing.

But Mr. Paswan's suggestion that President's Rule be imposed until the dust settles strains credulity. If governments at the Centre can be formed without Emergency being imposed, surely government formation in the States can also take place without President's Rule being proclaimed. But there is a deeper game in the Paswan solution. If President's Rule is not imposed, the Rabri Devi Government will continue; and indirectly Mr. Lalu Prasad will remain in power. The only way of immediately getting rid of all the vestiges of the RJD rule in Bihar is to impose President's Rule.

In the past, President's Rule has been used as a device to allow the political situation to settle down. But in our view this was wrong. The corrective to democracy is not Emergency rule. Mr. Paswan's suggestion of imposing President's Rule in Bihar is to fulfil his agenda against Mr. Lalu Prasad. President's Rule should not be imposed. Instead, the secular front should concentrate on whether it can claim a majority in the legislature. Mr. Paswan must decide whether he belongs to the secular front. Mr. Lalu Prasad too must decide whether he can stoop to conquer.

A controversy has erupted over Governor Syed Sibtey Razi's decision to invite the leader of the Jharkhand Mukti Morcha, Shibu Soren, to form a government in Jharkhand. The argument cannot be over democratic principles but only with respect to the Governor's arithmetic. In Jharkhand, the BJP is the single largest party — just like Mr. Lalu Prasad's RJD in Bihar. It claimed a coalition of 36 including six members of the JD(U). But as the figures added up on the evening of March 1, 2005, the strength of the Congress-led, post-poll alliance was also a clear 36 in an 81-member House. Eventually, the 41-member list of the BJP alliance competed with a 42-member list of the Congress-led combine.

After going through the various tests such as the `list' test, the `parade' test and the personal `interview' test, the Governor upheld the Congress' claim. This is very much in his discretion. He has imposed a confidence vote on the new Government. No doubt, whoever forms the Government has a strategic advantage. But the answer now lies on the floor of the Jharkhand Assembly.

Unfortunately, like any other disgruntled political party denied the promise of power, the BJP has decided to resort to agitation. Taking up the issue with President A.P.J. Abdul Kalam is nothing but political showmanship. The President has no role to play in the appointment of a Chief Minister. Indeed it would be wrong for him to do so. Nor can the President impose President's Rule without the advice of the Prime Minister. Typically, the BJP has also decided to disrupt proceedings in Parliament.

Parliament, too, has no role to play in the appointment of the Chief Minister. These are all political tactics — and, all the more ungainly for being so. The only constitutional option before the BJP is to challenge the Governor's action by defeating the confidence vote sought by Mr. Soren on the floor of the Assembly.

It would be sad and disturbing if Indian democracy went back to the situation of 40 years ago when governments at the Centre misused their Governors. Even now, Governors must put their house in order. The BJP's attempt to draw political mileage by comparing the Goa case with that of Jharkhand is without foundation. The Goa decision stands apart and has no bearing on the Jharkhand or Bihar situations. In the latter cases, the Governor is under a constitutional duty to examine which of the contesting claimants can form a stable government. In Jharkhand, he has made his decision. The decision has to be tested on the floor of the Assembly, not in courts of law.

Political parties should refrain from bringing constitutional governance to a halt simply because the Governor's discretion was not exercised in their favour.

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