The Bharatiya Janta Party claims to stand for vikas, or development, but its track record in destroying rather than advancing constitutional principles of governance invites a sense of horror. Forget the evil that other political parties may have done in the past. Since 2014, which was supposed to mark the beginning of ‘New India’, the BJP has used President’s Rule to bring down governments in Arunachal Pradesh and Uttarakhand (which was struck down by the high court), as well as Karnataka and Jammu and Kashmir.
In the last instance, the state was dismembered and placed under a communications lockdown that will soon register its hundredth day.
Using its governors in Goa and Meghalaya, it has violated the ‘largest party norm’ to form governments, and its lieutenant governor in Puducherry refuses to comply with the high court’s decision to curb her powers. Its attempts to paralyse the government of Delhi continued until the Supreme Court stepped in.
Without remorse, it put the Central Bureau of Investigation into crisis and controls its actions fully. It has put activists in jail and harassed the media and public defenders of human rights and the constitution. Its cohorts are responsible for numerous incidents of lynching and violence. Its tactics of money and muscle are well known. That it has influenced judicial appointments is apparent.
Now, the stalemate in Maharashtra has given the BJP another opportunity to play fast and loose with principles.
The Maharashtra strategy
But first, the post-election facts in Maharashtra. The seats won in the recent assembly election are as follows: BJP 105, Shiv Sena 56, Congress 44, NCP 54 and others 25. The ‘others’ include the CPI(M) and MNS with one each, SP and AIMIM with two each, Prakash Ambedkar’s VBA with three and 13 independents. As it happens, there were 7,42,134 NOTA (none of the above) votes, which would have made a difference in many seats in this election.
The BJP-Shiv Sena fought the elections together with seat sharing, and the Sena cited an informal pact to assert its right not just to ministerial berths and other spoils of victory, but also to the chief ministership for the first half of the government’s five-year term.
On this, the BJP has been in denial, leading the Shiv Sena to accuse its alliance partner of lying. Having played the trick of rotating chief ministers in Uttar Pradesh, the BJP has found that its invention has returned to plague its inventor.
Of course, the BJP had the option of handing over the chief ministership to the Sena. But that would have been giving in. They say that a Chanakya was masterminding this strategy in Delhi. But Chanakya was a strategist and not a strong-arm specialist.
In the NDA, the BJP makes alliances, but consistent with its muscular strategy does not brook opposition, much less rebellion. In Maharashtra, it has a seven-part strategy:
First, warn the Sena and all NDA partners not to mess around with the all-powerful BJP and its parivar and eventually return to its fold in future.
Second, use its dirty tricks department to target a split in the Sena and independents to paralyse the functioning of any alternative government and call the shots.
Third, blame the Sena and Congress for a fresh election emanating from a crisis of its own creation.
Fourth, strike with President’s Rule when the time is ripe.
Fifth, rely on BJP-appointed governor Bhagat Singh Koshyari to abuse his powers.
Sixth, use money and muscle to have its way and demonstrate its street strength.
Seventh, knowing that in certain areas in Vidarbha and elsewhere, the NCP and Congress have demonstrated electoral strength, the BJP would like to weaken this base as also that of the Sena to project that they have betrayed their electorate both ideologically and in collaborating with political enemies.
The joker in the pack is the requirement that a minority coalition itself move a ‘confidence’ vote to prove it has a majority. Of course, this is the surest way for that coalition to perform harakiri.
The ‘confidence vote’ (as opposed to the no-confidence vote that the opposition moves) is a strange, crippling Indian practice which goes to the core of the post-election crisis in Maharashtra in 2019 and to many other crises in the career of the parliamentary system practised in India. The Maharashtra crisis, and, indeed, the Karnataka crisis, are only illustrative of forebodings that cry out for resolution on a basis beyond the crisis they generated.
The ‘confidence’ vote is a misnomer. Statistically from 1952-2003, 101 motions of confidence were tabled, 99 were debated, nine confidence motions were negatived against the government, eight chief ministers resigned in anticipation of loss of confidence, and 80 confidence motions succeeded.
Such motions increased in the 1990s, but were invented earlier. The 99 confidence motions were debated in 21 assemblies, discussed by 889 members; and it is estimated that some 249 hours were spent debating them over 105 days. In 1991, in Meghalaya, speaker P.R. Kyndiah used his casting vote to bring down the Lyndoh government.
The Supreme Court ordered a composite floor test in UP in 1993 and has ordered confidence tests as recently in Karnataka in 2019. Anticipated confidence motions brought down the Charan Singh government in 1979 and Atal Bihari Vajpayee’s first government in 1996.
These statistics underplay the actual situation. In each case, every time a confidence (and, indeed, no-confidence) motion is tabled, a wicked drama is played out. Money changes hands, offers are made of governmental positions, legislators are garrisoned in five-star hotels, black money reigns supreme and there are threats to life and limb. In terms of duration, multiply this a hundred times over to get an actual estimate of the time spent in each crisis.
In fact, there is no real rule for confidence motions. The Lok Sabha debates confidence motions under Rule 184 (matters of public importance) as do some states. UP sends such a motion to the Business Advisory Committee first and, then (like many states) follows the no-confidence procedure. So, in fact, no procedure for a confidence motion was ever envisaged.
No confidence motion
I have already explained that the confidence motion requires committing harakiri. But it is also a matter of principle that such motions should be abolished. There are several reasons for saying so.
First, requiring a confidence motion means that a minority government can never be sworn in, because the effect of a confidence motion would be that it would necessarily fall unless it survives by hook or by crook – mostly by the most obnoxious crook and threats that insult the constitution.
Second, if the opposition tables a no-confidence motion, it has to take responsibility for the fall of the government, and cobble a majority once again by the equally pernicious method of hook and crook.
Third, the opposition which tables a no-confidence would also have to take responsibility for the ensuing early election as it would be squarely to blame.
Apply this to the present Maharashtra situation where a minority government has to be sworn in. It is actually no business of the governor to verify a viable absolute majority. Nor, I believe, should the governor insist on a confidence motion. It is for the opposition to take responsibility for tabling a no-confidence motion. If the BJP does this in opposition, it will stand exposed to all the consequences.
Fixed term legislatures
Faced with coalition situations, the British in 2011 fixed parliamentary terms at five years. No-confidence motions should be able to target not just the government in power but a specific prime minister. A no-confidence motion would not automatically lead to a general election and the option of forming alternative governments would remain. A dissolution would only take place if two thirds of the lower house votes for it. We should seriously examine this remedy.
I also believe that legislators should remain true to the platform they were elected on. A simple provision should be made making defection invalid and any defection should result in a disqualification for six years. However, where a legislator resigns, he should not be allowed to stand in any by-election for the remainder of the term of the legislature. If he votes in defiance of the party in the legislature, the political party may deprive him of his membership after internal due process and the result would be a constructive resignation.
Now, of course, these latter proposals for a fixed parliament are for the future. But the prescription of a confidence vote should be declared impermissible, leaving it to the opposition to table a no-confidence motion and face the consequences.
I also believe that although the Supreme Court has ordered confidence motions in the past, the point at issue is wide open because the Supreme Court and high courts have never really discussed this.
So, the governor of Maharashtra can swear in an entitled minority government but he would be wrong to insist on a vote of confidence.
Rajeev Dhavan, senior advocate, is lead counsel for the Muslim plaintiffs in the Babri Masjid title suit at the Supreme Court.