Rajeev Dhavan
The people of India have spoken – discerningly weighing local, state and national issues. They have defied the pundits of prediction and put presidential dilemmas to rest. The Congress led UPA has won – still short of a clear majority which is within its grasp. Three things have dominated this election: charisma, performance and strong party presence. In West Bengal the left’s party presence was belied by its performance. In UP, the Congress party rebuilt its ranks and contested all the seats.
For the future, an important issue survives. India lacks party discipline and democracy. In the George Fernandez JD split case, TN Seshan as Chief Election Commissioner gave an ‘order’ that political parties must adhere to their constitutions. Sanjay Gandhi’s legacy was to build Indian politics around goonda power. This model was emulated. Today, people are drawn to rallies by the promise of free lunch boxes. The political party is the vehicle of Indian democracy, not reliance on goondas and goons. Each political party has to build its cadres from below, keep them active for the next five years and be accountable to the party constitution. The important message of this election is politicians cannot simply sow the wind and expect to reap the whirlwind.
Before the result became clear, there was a considerable controversy over the President’s options. Many options associated with past Presidential practice were suggested: largest simple party, the largest pre-poll alliance, the largest post-poll alliance, the largest party or combination with a majority, the largest party or combination if no majority exists. In my view, there was never any magic formula ready for invocation. All our Presidents have been Congress nominees – of which President Pratibha Patil is the most obvious example. The real fear was that as a Congressite she might invite the Congress as the largest party, even if others had a better claim. The fear turned round the ‘largest party’ formula precedent of 1989 when Rajiv Gandhi was invited but declined to form a government. Constitutional theorists have blown many trumpets (or shennais) around various magic formulas to present dilemmas where none existed. Formulas are misleading and can only result in infirm results. The more we curtail the Presidential discretion, the better it is. The people want: stability, stability, stability. The answer to Prime Ministership selection is: arithmetic, arithmetic, arithmetic. Stability has to be founded on arithmetic which is the only logic Indian politicians will understand even if they pave their lives for it. There was no point in tempting the President with biased moral choices wrapped up in clever formulas wrapped up as Chinese cookies with a message. Coalitions have existed in India since 1967. Governors have played havoc with magic formulas. Indian constitutionalism should now accept one test: arithmetic. The largest pre-or-post poll combination or party that has a clear majority has to be invited. If no clear majority exists, the largest pre-or-post poll combination or party.
India is very low on the moral conventions that are supposed to bind a working constitution in place. Conventions set working moral standards. But what good are moral standards? Can they shame the shameless? Conventions have become irrelevant. Only strong legal restraints and fear of loss of power work.
So, the President must accept the largest party or combination which has a majority irrespective of whether there was a pre-poll alliance or not. In any case, there is no magic in a pre-poll alliance. The Anti-Defection Law recognizes ‘political parties’. A pre-poll alliance is a political assurance with the implied ceteris paribus clause: if other things remain the same. In these situations nothing remains the same. There is no constitutional discipline that can be imposed on any alliance – pre or post poll. The President can only recognize the numbers in front of her.
In the aftermath of the present election, President Patil cannot be accused of partisanship, if she invites Manmohan Singh to form the next government. His majority is not clear. But, the President is entitled to ask Manmohan Singh to assure her that he has a clear majority and the prospect of running a stable government. Once again her request is confined to numbers. It is for Manmohan Singh to convert political algebra into Presidential arithmetic. In the present case, if a single party is pledging support (whether from within or without government) to the UPA, the leader of that party must assure the President. Where the support is fragmented, a signed list is enough. No ungainly parade is necessary.
Should there be a confidence vote after, the swearing in and Parliament is summoned? I have always taken the view that the singularly Indian practice of asking the new Prime Minister to table a confidence motion is pre-emptively absurd. Confidence motions are hara-kiri motions or what is colloquially called “ah bail mujhe mar” (O Bull, come attack me). Oppositions have to vote against confidence motions. Every Prime Minister needs a breather. Suppose there is a minority government with the largest party or combination without a clear majority. Are they to be doomed by a self inflicted confidence motion? Let them survive. If the opposition wants to table a non-confidence motion, let them do so at the risk of forcing another election and risking the wrath of a people. Perhaps one convention should develop that no confidence motions will be tabled for at least a year!
A clear result has meant that horse trading is obviated. There will be demands like those of Chief Minister Nitesh Kumar of Bihar that more resources should be given to his state as a ‘backward’ state. I really do not think partisan promises can be made in exchange for power. Even worse was the Jayalalitha’s expectation that the new Union Government would plot and ensure the fall of the DMK government. Such demands undermine constitutional governance and pre-empt parliament and the Cabinet’s independence and autonomy. At best, Nitesh Kumar can be told that the needs of Bihar will be considered as they are duly bound to be.
I have always feared the period between ‘declaration of results’ and ‘government formation’. I can this a corrupt interregnum when horse trading, suitcase politics, inducements of office are made. The anti defection law does not apply until Parliament is formed. But, I think there is a tension in the Xth schedule which houses the Anti Defection provision of the Constitution. One part of the Xth schedule declares that a person shall be “deemed” to belong to the party that set him up as a candidate or as an independent as the case may be (Explanation). Another part of the Xth schedule permits disqualification only of members of parliament. The Supreme Court has not ruled in this, but it should. I think an advisory reference should be made to the Supreme Court that the Constitution does not permit a person standing on a party ticket or as an independent to change sides after the elections. Integrity to the electorate must be assured. Depending on the Court’s response, a constitutional amendment may be necessary. During this period, no President should allow such defections as part of the head court. For the present this problem does not arise.
Indian governance can confidently move forward.
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