AG Noorani, Hindustan Times
November 07, 2007
November 07, 2007
Deve Gowda's MoU.
The JD(S) President, HD Deve Gowda's memorandum of understanding (MoU) of November 1 with its 12 conditions has no precedent in the annals of parliamentary government. We must be careful about setting bad precedents in the states. As BR Ambedkar told the Constituent Assembly on December 30, 1948, apropos conventions on the appointment of a government, "The position of the Governor is exactly the same as the position of the President".
The MoU acquires a more sinister hue when read in this context. A Congress-JD(S) coalition led by Dharam Singh assumed office in Karnataka on May 28, 2004, after the general elections to the state assembly. The JD(S) withdrew from the coalition on January 18, 2006, and took the BJP as its partner instead. JD(S) leader HD Kumaraswamy said they would discuss more than sharing of ministerial berths. "Other details such as the sharing of Boards and Corporations (PSUs) will also be finalised." Of the 70 such bodies, the BJP got 40, the JD(S) 30. This is what we have come to. The coalition would be led by Kumaraswamy in the first 20 months and by the BJP leader BS Yeddyurappa in the remaining 20 months of the assembly's tenure. Moreover, in the first phase, the Speaker would be nominated by the BJP, in the second by the JD(S).
The coalition took office on February 3, 2006. On October 3, 2007, he reneged on his promise and refused to yield the CM's chair to the BJP. Stung, the BJP withdrew from the coalition on October 7. The next day Kumaraswamy resigned as CM. On October 9, President's rule was imposed in Karnataka but the assembly was suspended, not dissolved.
Come October 24, HD Deve Gowda wrote to Governor Rameshwar Thakur, and to Prime Minister Manmohan Singh, very properly urging dissolution of the assembly.
The JD(S) embraced the BJP once again to form a government.
On November 1, HD Deve Gowda sent his historic MoU to the BJP President, Rajnath Singh, stipulating 12 conditions which no political party with any self-respect would accept. It renders governance impossible and unconstitutional. It goes beyond the usual minimum common programme on matters of policy. "Important administrative postings and promotions in respect of high administrative offices which have an influence on the quality of administration shall be made by the chief minister in consultation with the political partner, the JD(S)." In effect, it stipulates consent. The same rule applies in the appointment of Advocate General and "other law officers". Finally, "in the event of any significant departure/deviation from the above understanding that impairs the ability of the coalition to provide highest standards of governance in the state, which remains unresolved through the mechanism of coordination committee, any of the partners shall be at liberty to withdraw from the coalition". This is a conveniently vague and sweeping condition.
This is no way to run any ministry. It is a Deed of Marriage with the divorce papers annexed for each to file at will. On November 4, Kumaraswamy said that while his support to the BJP was unconditional, "the rider is that the Dal (S) should not be blamed or held responsible for any untoward incident or unhealthy development that takes place during the regime of the BJP-led coalition government". This flouts Article 164 (2) of the Constitution which lays down "The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State".
In the same vein Deve Gowda said on November 1 that the alliance was only a "temporary arrangement" till elections to Lok Sabha are announced. What of his letter written a week earlier urging dissolution of the assembly? "I maintain the same position despite the JD(S) entering into a fresh tie-up with the BJP. I have not written any fresh letter to the Governor or the President, which could possibly nullify the contents of the first letter", which warned against defections.
The BJP also favoured dissolution then. Parliament should take him at his word and ratify the proclamation imposing President's Rule. So should the Union Cabinet. It should dissolve the assembly thereafter.
The country has long suffered two obscenities. The constitutional one of abuse of the power to impose President's Rule has been taken care of by the Supreme Court's ruling in the Bommai case. The political one of coalitions promiscuous and unstable must be brought to an end also. It surfaced in 1967 in a big way.
At that time, the President appointed on November 26, 1970, a committee of governors "to study and formulate norms and conventions governing the role of governors under the Constitution". Its report is instructive. "We witness an assortment of parties with widely divergent programmes and policies — wherever such programmes and policies are publicly announced — combining themselves to form what are now called samyukta vidhayak dals (united legislature parties), the only agreement among them being the agreement to get into government. The two basic conditions which would ensure a stable government by such combinations are, first, that the different parties should enter the combination as a unit, and secondly, that they should remain faithful to the combination. Experience has shown that neither of these two conditions has existed in the states where we have had samyukta vidhayak dal governments."
Its censures on defections and the remedy it proposed apply to such alliances. "It may be considered whether in situation like this the proper course would not be a dissolution of the legislature and an appeal to the real political sovereign, namely the electorate as was done in Mysore." In a similar case of alliances broken and mended, the governor of Gujarat reported to the President, "The conditions prevailing in the state at this juncture are such that any party agreeing to form a ministry will have a tenuous majority and will not be able to provide a reasonably stable government to the state."
In Bihar, the Supreme Court rejected the governor's claim to decide whether majority was secured by bribery. But it accepted the test of stability in the very passage quoted by BJP supporters. "If a political party with the support of other political parties or other MLAs satisfied the governor about its majority to form a stable government, the governor cannot refuse formation of government because of his subjective assessment that the majority was cobbled by illegal and unethical means of horse-trading and allurements."
Rodney Brazier, an authority on constitutional law and practice, holds that in a House where no single party commands a majority, it would be prudent for the Queen "to tell the leaders that if she were to receive evidence… of a copper-bottomed agreement on a majority coalition, its leadership, proposed disposition of ministerial officers and agreed Queen's speech (on policy issues), together with an equally sound guarantee that the coalition government would not seek dissolution within a reasonable time, then she would appoint the person agreed upon to be Prime Minister".
Deve Gowda's MoU is not 'copper-bottomed'. It is full of holes. The Centre must not allow his MoU to make a mockery of the Constitution. In such a situation parades of fickle politicians are constitutionally irrelevant.