Prime Minister Narendra Modi thinks of himself as the king-emperor of India. He wants to capture all the states, by fair means or foul. His claim on the electorate is supposedly his ‘charisma’, and his oratorical and organisational ability to capture crowds. In this there is no one to challenge him unless they do so collectively – as was done in Bihar by the mahagathbandan. In Uttar Pradesh, there was no collectivity even within the Samajwadi Party (SP).
The SP’s alliance with the Congress was not a mistake. Rahul Gandhi, however, was inevitably a liability. But Modi is an unscrupulous demagogue. His party lines up behind him, backing him on unconstitutionalities. He has eliminated competitors. His electoral and all-purpose “army” is the RSS and kindred organisations. Modi’s method of rule developed in Gujarat, his term being synonymous with riots, murders, motivated arrests and encounter killings. All this is, however, forgotten now.
There is no doubt that the BJP’s victory in UP and Uttarakhand was partly a result of anti-incumbency. In Uttarakhand, the Congress government was accused of corruption. The unconstitutional methods of removing it were rightly highlighted by chief justice K.M. Joseph of the Uttarakhand high court. And what happened to Justice Joseph? He was not elevated to the Supreme Court. The earlier attempt to remove the Congress chief minister of Arunachal Pradesh through president’s rule was correctly criticised and set aside by the Supreme Court. These two directly unconstitutional usurpations shows that Modi treats the constitution like a rubber band – as elastic as he wants it to be.
Role of the governor
There is considerable controversy over the role of the governor. The governors under the Government of India Act 1935 were by the Raj, of the Raj and for the Raj. The constituent assembly wanted elected governors as proposed by a sub-committee of B.G. Kher, K.N. Katju and P. Subbarayan. Ironically, Katju was later appointed governor of West Bengal, even though he clearly took the view that the office should be apolitical. The draft constitution of 1948 was ambivalent – the drafting committee leaving it to the constituent assembly to decide whether governors should be elected or nominated.
There was an instrument of instructions for governors in the Fourth Schedule, which, however, was excluded for its British antecedents and because Jawaharlal Nehru and Sardar Patel thought it would be unenforceable. At some stage it was thought that the governors should be selected from a panel. The proposal for a deputy governor was dropped. Jayprakash Narayan echoed an emerging view in the constituent assembly that the states could not have an elected governor who would clash with the proposed electoral democracy for the states. Curiously, Narayan also argued the case for a governor elected by proportionate representation.
Babasaheb Ambedkar contradicted himself in saying that the governor would be just a symbol and also have discretionary powers. On May 30-31, 1949, Brijeshwar Prasad moved an amendment that the governor be appointed by the president. K.M. Munshi supported the proposal and Nehru intervened to say that “in the present context of the constitution, [it] was not only desirable from a practical point of view but from a democratic point of view too, it was worthwhile and desirable”. T.T. Krishnamachari felt that after the “frank speech of the prime minister,” the discussion should stop, and called the opposition to this concentration of power in the president a “bogey”. In the end, Ambedkar settled the debate by saying that the governor’s powers would be circumscribed by the constitution and statute. Tactically, he left it to the constituent assembly, knowing that the amendment would be carried.
Clearly, his optimistic assumption that governors would be bound in their discretion was way off the mark. The various speeches on the governor by independent members expressing concern about the governor’s powers and fearing he or she would become an agent of the Centre were more on target.
What makes a good governor?
Despite the acute controversies in the constituent assembly, Nehru spoke for all when he outlined what was expected of a governor.
“I think it would be infinitely better if he was not so intimately connected with the local politics of the province…And would it not be better to have a more detached figure, obviously a figure that…must be acceptable to the government of the province and yet he must not be known to be a part of the party machine of that province…But on the whole it probably would be desirable to have people from outside – eminent people, sometimes people who have not taken too great a part in politics. Politicians would probably like a more active domain for their activities but there may be an eminent educationist or persons eminent in other walks of life, who would naturally while cooperating fully with the government and carrying out the policy of the government, at any rate helping in every way so that that policy might be carried out, he would nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine”
After Indira Gandhi’s misuse of the governor’s office in the 1960s, the Bhagwan Sahay-led committee of governors expected the governors to act according to constitution, but made a dangerous proposal:
“The committee recommends that a special wing may be set up in the president’s secretariat which would ascertain all the facts and circumstances relating to each situation which may arise from time to time requiring actions by a governor in the exercise of his powers and the reasons for the action taken by him in a particular situation. The facts as ascertained could then be confidentially communicated to all the other governors, with the permission of the president. This procedure would be of great assistance to the governors in knowing authoritatively how and why a particular governor took a certain action and the circumstances that led to it. The information would also help to establish a degree of uniformity in the treatment of situations where they may be found to be identical or similar, and perhaps even, in some cases, certain norms of action based on accepted canons of interpretation of the constitution.”
Effectively, it merely proposed the case of a good governor. But this suggestion was a nightmare. The 1988 Sarkaria Committee on Centre-state relations was more realistic in analysing the criticism of governors in:
(i) choosing the chief minister,
(ii) in testing majority,
(iii) in dismissal of the chief minister,
(iv) in dissolving legislative assembly,
(v) in recommending president’s rule and
(vi) in reserving bills for president’s consideration.
The Sarkaria analysis was devastating in terms of exposing everything that was wrong about governors and their discontents. As far as selecting a chief minister and cabinet was concerned, it used the test of “most likely to command a majority,” whether as a single party or combination. But most importantly, it suggested that if a chief minister does not have an absolute majority in the assembly, he should seek a vote of confidence within 30 days of taking over. This means that parties without a majority can appoint a chief minister even if they do not have a clear majority, subject to testing the confidence of the house. It gave a list of president’s rule in 75 states, and showed how governors were hired and fired. On the selection of governors, it laid down a criteria (similar to Nehru’s) but with the wisdom of hindsight.
“We recommend that a person to be appointed as a governor should satisfy the following criteria:
(i) He should be eminent in some walk of life.
(ii) He should be a person from outside the state.
(iii) He should be a detached figure and not too intimately connected with the local politics of the state; and
(iv) He should be a person who has not taken too great a part in politics generally and particularly in the recent past.”
It also said that the nominees of the ruling party should not be appointed and the state to which the governor is appointed should be consulted even though it had not been done. To save the governor’s office from subversion had become impossible.
The National Commission to Review the Working of the Constitution (NCRWC), also known as Justice Venkatachaliah Commission, reiterated the Sarkaria Commission in many ways as did the Punchhi Commission on what should be a good governor, noting that these concepts were approved by the Supreme Court in Rameshwar Prasad & Ors vs Union Of India & Anr (2006). But what was interesting were the NCRWC’s views on the selection of a chief minister by making a distinction between ‘pre’ and ‘post’ election coalitions. This is important to democracy because a pre-election coalition has a mandate whereas a post-election coalition is put together by political conspiracy. The Punchhi Commission summarised this as follows:
In case no party or pre-poll coalition has a clear majority, the governor should select the chief minister in the order of preference indicated below:
- the group of parties which had pre-poll alliance commanding the largest number;
- the largest single party staking a claim to form the government with the support of others;
- a post-electoral coalition with all partners joining the government; and
- a post-electoral alliance with some parties joining the government and the remaining including independents supporting the government from outside
There remains one important question on the appointment of a person who is not a member of the assembly. Although several high courts have opined that strangers to the state legislators can be appointed in such cases for six months, there is doubt over whether a person like Manohar Parrikar can be shifted out of the defence ministry at the Centre to become a chief minister without belonging to either house. No doubt there are several judgments that this is permissible; several politicians including C.B. Gupta in UP, Jayalalitha in Tamil Nadu and others have made this a well-trod path. But to ask the nation’s defence minister to resign to take over the chief minister’s post does not seem right.
In the end, the Punchhi Commission rightly summarises the role of governors:
“The governor’s role thereafter became increasingly controversial with allegations of partiality and lack of objectivity in exercise of the discretionary powers. The part played by some Governors, particularly in recommending president’s rule and in reserving State Bills for the consideration of the president, had evoked strong resentment. Frequent removals and transfers of governors before the end of their tenure have also lowered the prestige of this office. Criticism has also been levelled that the Union government utilises the governors for its own political ends. Many governors, looking forward to further office under the Union or active role in politics after their tenure, came to regard themselves as agents of the Union. The governor thus became a major issue affecting the equation between the Centre and the states.”
If this is the tale of woe, what is left.
When he became prime minister in 2014, Modi changed virtually all the governors and lieutenant-governors. The score card is as follows:
His appointments included an ex-chief justice of India, P. Sathasivam. The three pre-Modi governors who have survived are N.N. Vohra (J&K) a much favoured ex-home secretary, E.S.L. Narasimhan (Andhra Pradesh), who has had a tenure of over seven years in Andhra but who also had an additional charge for Telangana from September 2, 2014, and S.C. Jamir (Odisha). Who can say that Keshari Nath Tripathi (West Bengal) and Kalyan Singh (Rajasthan) are not staunch BJP supporters? And what about Tathagata Roy (Tripura), who uses social media for the cause of Hindutva despite occupying a constitutional position.
In the union territories, all seven governors were appointed by Modi, including the BJP’s defeated chief minister candidate for Delhi (Kiran Bedi), now lieutenant-governor in Pondicherry.
We have to find a new method of appointing governors. Consultation with the state government may not be enough. Many state governments may be supportive of the government in power in Delhi. All designated governors should be summoned before the Rajya Sabha for confirmation. It does not matter if the ruling party has a majority in the house. Each governor will be thoroughly interrogated, investigated and judged on suitability. Such a procedure should be inserted by amendment. Even by interpretation, the constitution should now be interpreted so that the president does not act on the aid and advice of the council of minister in gubernatorial appointments. The president could also lay down guidelines along the lines of the various committees so that he is not led astray by politics, that governors with political affiliations are excluded and proper, politically neutral governors are appointed. If this is done, he would be doing no more that what the constitution makers and various commissions and committees intended.
Some of Modi’s appointments have proved to be a disgrace. Consider the case of Meghalaya governor V. Shanmuganathan, who resigned on January 26 amid allegations of sexual harassment, with 80 Raj Bhawan staff members complaining that he ran his official residence as a “young ladies club”. Why was he appointed? Because he was a pracharak of the RSS? Is this what RSS pracharaks do?
In Arunachal Pradesh, governor Jyoti Prasad Rajkhowa gave biased instructions to the legislature and then on January 23, 2016, imposed president’s rule, which was conveniently withdrawn by Modi’s government on February 19, 2016. Rajkhowa has an MA in Economics from the Delhi School of Economics and also wrote a dos and dont’s book for the public sector. Alas, he didn’t write one on dos and don’ts for himself as a governor. Of course before and after Rajkhowa, the governor of Arunachal was Roy, who handled the matter of Kalikho Pul after the judgment of the Supreme Court. Pul, fed up with the machinations, committed suicide.
We move now to the Uttarakhand crises as manoeuvred by governor K.K. Paul, the former commissioner of police in Delhi. Paul was previously the governor of Meghalaya. After Modi won the general elections in 2014, he became the governor of Manipur, and on January 8, 2015, replaced Aziz Qureshi as the governor of the Uttarakhand. This is what the Uttarakhand high court bench of K.M. Joseph and V.K. Bisht had to say about the imposition of president’s rule in the state:
“Starting from March 18, 2016, the BJP had, even according to the learned attorney general, ‘come out in the open with the 9 dissident members of Congress’. When they write a letter to the president, we do not see how it can at all be taken at its face value. We do not think that it can be the material in the first place de hors any other objective material, for the imposition of president’s rule. It would, if it has been taken into consideration, be entirely extraneous and irrelevant, as the imposition of president’s rule would obviously be to the advantage of the BJP.”
In a similar strain, his bench also said:
“We may just summarise and state that the present case, which was set into motion with March 18, 2016 as day one and saw an unfolding of events culminating in the proclamation being issued in less than 10 days on 27.03.2016, brings to the fore a situation, where Article 356 has been used contrary to the law laid down by the apex court.”
Apart from moving the CBI against former chief minister Harish Rawat under president’s rule, this case ends vindictively against Justice Joseph too. He is a meticulous and brilliant judge – certainly a primary candidate for elevation to the Supreme Court. The collegium led by Chief Justice J.S. Khehar passed him over. Was this because Justice Khehar did not want controversies with the government? It was Justice Khehar who as the presiding judge of the NJAC judgment also insisted on a memorandum from the government, which has just now been agreed upon. The non-elevation of Justice Joseph was vindictive. The government obviously did not want an independent judge. In the collegium, only Justice Chelameshwar saw through this and protested against Justice Joseph being overlooked.
The 2017 Goa elections saw a close contest for most seats. The number of seats where the margin of victory was up to 1000 votes was seven, in six seats it was 1001-2000 votes, in 16 seats it was 2001–5,000 votes, in 19 seats it was between 5001-10,000 votes, in 15 seats it was between 10,001-20,000 votes, while the victory margin was beyond 20,000 in nine seats. At the end, the Congress with NCP had 18 seats and was the single largest party, needing only three more for a majority. The BJP had 13, (well short of a majority), with the remaining ten seats in the 40-member assembly going to other parties and independents. Yet, the governor appointed a BJP coalition with the MGP (three seats), Goa Forward Party (three seats) and three independents.
Fali Nariman and several newspaper editorials lambasted Goa governor Mridula Sinha for not calling the single largest party with a near decisive MLA tally. The matter went to the Supreme Court before Chief Justice Khehar. What he is reported to have said is astounding by any standard.
“Where are your numbers? You could have finished the case in 30 seconds by showing they [BJP] don’t have the numbers. It seems you were not confident about the support you have. You should have asked the governor what nonsense she is doing and confidently said look we have the numbers. You should have sat on a dharna. You did nothing. …You had the entire night [ever since moving the SC], the best time, to get affidavits ready or present your supporters before us…. You are putting us in the position of the governor. These things you should have stated before the governor,” he asked.
The chief justice advised the Congress to hold a dharna before the governor instead of approaching the court. Chief Justice Khehar asked for an assembly test but should not have spoken as he did. It was politician talk. On March 18, this is precisely what the Congress did before the Raj Bhavan. It is true that the BJP went to the governor first. But the Congress had to be “called” as the largest party. That was the duty of the governor.
It is true that Nitin Gadkari of the BJP had swung into position earlier than the Congress but the governor cannot act on who wins the race to the Raj Bhawan. Sinha’s constitutional independence demanded examining the result, not the race. But her argument was that the BJP had acted swiftly – a new and dangerous constitutional precedent.
In an interview to Mumbai Mirror, when it was stated that “Rahul Gandhi and other Congress leaders have directly attacked you, saying you have done an injustice,” Sinha said:
“Do you really think I have been unfair? I have told you the circumstances and they illustrate I followed procedure.
I was anticipating that Congress would approach me first after securing the support of some groups, and form its government. But they didn’t show up. No one even called.
When Congress leaders eventually demanded more time from me on Tuesday, I granted it. They wanted to meet at 11 am and I met them at 1 pm. I told them I had been waiting for them since Sunday morning. This is a fact.
I didn’t expect the BJP to form the government, but it acted swiftly.
How can Congress members cry injustice when they couldn’t muster support? It wasn’t up to me. Even the Supreme Court questioned them why they did not stake a claim, I am being told.”
She favoured Parrikar (now the chief minister), when answering a question on the stability of government.
“Why would it? Parrikar is a smart, experienced and alert leader. He was chief minister for four terms. He knows everyone personally and I expect he will be attentive to all of them, knowing who can be constructive in which department. He knows how to keep them occupied.”
Regarding facing pressures from the central government, she said,
“I didn’t speak with the Centre, no one approached me, no one called me.”
“Then Parrikar informed me around 6.30 pm on Sunday that he would show up with his supporters and they came and I spoke with them for about an hour and a half. I am a psychologist, so I studied and analysed them. I saw their signatures on the letters. I deliberated on the matter. The Congress had not shown up.”
Then came the confession.
“Then I felt I should speak with Arun Jaitley, and I called him around 9.30 in the evening, discussing the situation. I informed him I had verified the numbers and was satisfied and that Congress leaders hadn’t arrived yet. He said that if any party comes with the numbers, it has to be considered. So that settled it.”
Sinha admitted taking the advice of a Union minister, who is now guilty of constitutional impropriety and should be dismissed.
She was convinced that she was right and it was ridiculous to call Congress to rule Goa.
“One group had the majority, and it would have been improper to call the other side which had fewer numbers. Even if I had called Congress for the sake of formality, it would have led to ridicule for them: everyone apart from them was with BJP.
It is evident I have not done anything unconstitutional.”
Manipur was created in 1972 and immediately put under president’s rule. Its democracy was destroyed by president’s rule in 1973-4, 1977 (after the Emergency along with eight other states), 1979-80, 1981, 1993-4 and 2001-2. It has a population of 2.57 million, urbanisation to the extent of 32.4%, and 79.8% literacy. The crime rate is 1887 per million. It has not completed projects though investments in 171 endeavours are promised. It is a victim of neglect and manipulated politics. Governor Najma Heptulla was nominated to the post by Modi on August 21, 2016.
Although Heptulla served as a Congress Rajya Sabha MP from 1980 to 1998 and as deputy chairman of the house from 1985-6 and 1988-2004, she left the party after a rift with Sonia Gandhi. Heptulla soon thrived under the BJP, who appointed her as minister for minority affairs on May 16, 2014. In 2016, she was moved to Manipur as governor.
The Manipur election results saw the Congress win 28 seats (35.1% share of the electorate) and the BJP 21 seats (36.2% of share). The single largest party was the Congress in a legislature of 60 seats. It had a claim to be considered first to form the government. This was the duty of the governor and not of the Congress. Chief Justice Khehar’s oral advice in the Goa case was for parties desirous of power to race to Raj Bhawan and in case of dissatisfaction, hold a dharna there. Fortunately, this was not in a judgment but extemporally stated.
It appears that after the results, a Congress MLA, Shyam Kumar, went to Rajya Bhawan with the BJP. The anti-defection law does not apply until the MLAs and MPs take their oath in the assembly or the parliament. As an undemocratic turncoat, however, the governor should have disbarred him in this context. The Congress chief minister, Okram Ibobi Singh, told the press that he had met the governor but could present only 27 members because of Kumar’s defection. The Congress was nevertheless the single largest party. The BJP was short by ten and cobbled together four MLAs from the National Peoples Party, four from the Naga Peoples Front and one from Trinamool Congress. This took its support to 31 MLAs in the house of 60. BJP spokesman Ram Madhav said that the NPP and Lok Janashakti Party (with one seat) had been BJP partners.
“There has been a mandate in Manipur clearly for a non-Congress government so it is natural that all the political leaders decided to come together. I welcome my colleagues from the NPP and LJP for their wise and timely decision to join us. I know that there are other options available but they have respected the mandate of the people and the platform of development that Manipur has chosen.”
This is hardly a pre-election coalition or mandate which is fundamental to electoral democracy. Conrad Sangma of the NPP, who had issues with Congress, said the BJP promised change. “The verdict of the people of Manipur is a verdict for change, and we will together give them that change… Under the leadership of the central government and Prime Minister Narendra Modi, we will be able to see change in Manipur.”
At least LJP’s K. Shyam was clear that he wanted to “finish the Congress regime”. There was also the curious case of Ashad Uddin, Manipur’s sole independent MLA, being hijacked from Imphal airport.
The margin of victory in 18 seats was less than 1,000 votes. In 14 seats, it was between 1001-2000 votes, in 16 seats between 2001-5000 votes, eight seats were decided by a margin of 5001-10,000 votes, while MLAs with clear majorities above 10,000 were only two. This shows that the election was hard fought – each party on its own mandate. How could this mandate be broken immediately after the election? In this case, governor Heptulla was faced with a Congress claim promptly (unlike Goa). But she was against the Congress. In any case, she chose arithmetic rather than algebra. The algebra would have forced her to recognise that democracy cannot be subverted and mandates abandoned. I am not partisan towards the Congress, but the constitution cannot be subverted nor can democracy be slapped on its face.
The single largest party issue
This is a vexed issue because of the unscrupulous past practice by Congress during and after the 1967 elections. The silence of the constitution was taken advantage of by Indira Gandhi through a mixture of President’s rule and misuse of governors who either invited the majority combination or the largest minority party. Of course the governor has to assess the situation. The Governors Committee (1971) said:
“The leader of the largest single party in the assembly (when no party has an absolute majority) has, however, no absolute right to claim that he should be entrusted with the task of forming a government to the exclusion of all others. The relevant test is not the size of the party but its ability to command the support of the majority in the legislature. It may be that a party even though leading in relative strength in a legislature, may not be able to obtain the support of other members. In contrast, a numerically smaller party may command majority support with the help of other parties or groups. The governor has thus firstly and essentially to satisfy himself that the person whom he invites to form the government commands majority support in the legislature.”
The governors went on to use various techniques to make decisions using the three tests: (i) test of support (ii) parade of legislators in Raj Bhawans and (iii) a combination of both. This created a most invidious practice of shifting the balance away from the electorate and legislature to the governor’s drawing room. These tests were used by the governors in Bihar (1968), Gujarat (1971), Rajasthan (1970) and again in Gujarat (1978). The unedifying parade system was used in Punjab (1969), UP (1967) Karnataka (1983), Tamil Nadu (1968) and Goa (1990).
Interestingly, governor Sampurnanand in Rajasthan in 1967 refused to accept independents supporting a claim because they did not belong to a political party or have policies. This helped Congress but contains the germs of a principle.
The other point of view was to select the largest party even if it was in a minority and see how it fared in a floor test. This is known in some circles as the Sri Prakash doctrine – after the mean who had been the governor of Assam, Madras and Maharashtra over 12 years. His reasoning was:
“The head of the state is perfectly within his rights – in fact it is his duty – to call, in these circumstances, the leader of the largest group to form the government. If all other parties join together and defeat the government, then and then only – can the head of the state call the person whom these parties together may choose as their leader – to take charge of the government. The whole procedure is perfectly clear and constitutional and should be followed… I do not think a governor can take into cognisance any new party that may be said to have been formed after the elections and before the legislature meets. He can only accept the nomenclature of the parties as they were given before the elections”.
This doctrine was supported by ex-Chief Justice Subha Rao but not ex-Chief Justices Sarkar and Gajendragadkar. But this doctrine was used by Sri Prakash in Madras (1952), by the Raj Pramukh in Pepsu and Travancore – Cochin (1952) and in Orissa (1957) Madhya Pradesh (1968) Rajasthan (1962), Orissa (1967) Bihar (1969), but not in Kerala (1965). No doubt each one was tainted by a pro-Congress bias.
There are clearly two sets of practices – mostly tainted with bias. But we must look for principles. There is something in the argument that “independents” should not be taken into account in Raj Bhawans. So also the view that he can only accept the party coalitions before the elections. It is a question of the mandate of the electorate not being abused by post election conspiracies.
In the Bommai case (1992), president’s rule is subject to judicial review. This is also true of the Rameshwar case (2006) on gubernatorial discretion generally. So principles have to be worked other than the impervious stand of Chief Justice Khehar. I think these principles are to be found in the Punchhi Commission and Venkatachaliah Commission. The Punchchi report quotes Ambedkar in the constituent assembly that “the governor has no functions which he can discharge by himself, no functions at all. While he has no functions, he has certain duties to perform”. The Punchhi Commission worked out the duties on principle noting that there had been “politicisation” of the governor’s post. Both reports make a distinction between pre and post-election alliances. This was consistent with democratic principles, which must accord primacy to what was said or promised to the electorate. The Punchhi Commission puts this point well:
“In light of the increased dependence on party alliances, clarity with regard to the role of the governor in his invitation to form a government assumes great significance. If specific guidelines are not laid down with regard to determining the claims of a postpoll alliance, it would result in ambiguity and the governor would follow the established convention of inviting the single largest party to form the government. In cases of narrow majorities, there are no uniformly accepted conventions and this can be remedied by adopting constitutional amendments, which lay down specific guidelines and approaches which ought to be followed by the governor. This would result in greater clarity and certainty.”
Democracy demands that the machinations of post-electoral alliances be rejected as they violate the mandate of the legislature. Preference has to be given to the pre-poll alliances and the largest single party without a majority. We can’t have union ministers (Arun Jaitley) giving advice to governors or governors preferring conspiracies to democracy.
Saving India’s democracy
Elections are India’s greatest strength. The electorate speaks with perception, mood swings influenced by canvassing and sees to its own interest. But the cause of elections perishes if governors and union ministers behave, in Kipling’s phrase, “as bandar log without the law”. The governors of Goa and Manipur are guilty of immense political corruption violating constitutional principles. They have demonstrated no concern for democracy or democratic principles or the importance of a people’s mandate.
The issue this raises, beyond that of who became chief minister, is how governors ought to be selected.
Principles emerge from good practices not bad ones. Good principles recognise constitutionalism and democracy. I suggest recognition of the following:
- Governors should not be party men and politically neutral by criteria declared and stated by the president based on constitutional commissions and committees.
- All parties and individuals must abide by their mandate during the critical period between the declaration of results and the first post-election session of the assembly or parliament. This is the dangerous time when the anti-defection law does not apply. It is undemocratic to abandon the mandate of the people.
- Prima facie, the governor must reject party candidates and individuals that abandon the mandate. India’a democracy cannot be put to ransom by governors in the drawing rooms of a Raj Bhawan.
- Governors must not consult union ministers to decide what to do. (This emerges from the governor of Goa consulting cabinet minister Jaitley)
- If there is a hung result, the governor shall select the single largest party or pre-election combination and reject post-election alliances and defections including individuals.
- For a minority government to survive, it must face no confidence motions rather than confidence motions.
- In the assembly, those who change their party or mandate will be subject to the anti-defection law.
- This will stop floor crossing by inducement of ministries.
- It follows that those who want to support a government must do so from the outside.
Indira Gandhi subverted the constitution even before the Emergency of 1975 and certainly during it. That was a bad precedent which was later followed by Modi. It is about time that these problems were addressed.
Modi wants to conquer India by hook or by crook. His governors are his co-conspirators. He has put the constitution on a slippery slope. The fact that Indira Gandhi did so too is hardly an excuse.
Rajeev Dhavan is a senior advocate in the Supreme Court.