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Mainstream, VOL LIII No 1, December 27, 2014 - Annual Number

The Subversion of the Constitution

Saturday 27 December 2014, by P.B. Sawant

The Bharatiya Janata Party, though a minority party in the Maharashtra Legislative Assembly, being the party having the larger number of legislators in the Assembly than any other party, was called upon by the Governor to form the government in the State, on the condition that it proves that it is supported by a majority in the House within 15 days. The party failed to prove it, according to law, when it attempted to do it on November 12, 2014. Hence, the government should have resigned on that day, which it did not. The Governor should therefore have dismissed the Ministry as is the well-established constitutional convention of the Cabinet system of parliamentary government. The Governor failed to do it and allowed the defeated government to continue in office, till December 5, 2014 (on which day it allied with the Shiv Sena and formed a majority in the House), illegally and against the provisions of the Constitution. As a result, we had in the State of Maharashtra the rule of an illegitimate government with the connivance of the Governor. All the acts done by the said usurper government and all the expenses incurred on it are contrary to law, undemocratic and expressly violative of the Constitution.

Not only all the deeds of the Ministry during the said period are invalid in law, but the monies spent on the Ministry during the period are recoverable from each of its members.

It is true that in the Constitution there is no provision made, in so many words, to deal with a situation when the defeated Ministry or the Ministry, which loses the confidence of the House, does not resign or the President or the Governor, as the case may be, does not dismiss it. But that is because, it is a well-acknowledged assumption of a democratic government that it is always the government with a majority support which will govern and the minority government shall not rule. This is implicit in any democracy. When we accept democracy, we accept all its rules, conventions, assumptions and implied practices which make it work. The parliamen-tary democracy is unworkable, unless the Ministry’s responsibility and accountability to the House is unconditionally acknowledged and discharged. It therefore follows that the Ministry, which does not enjoy the confidence of the House, shall not rule, and if it tries to do so, the Governor, as the Head of the State and empowered under the Constitution, shall not allow it to hold office. In spite of this legal provision, when the Ministry clings to office and the Governor does not prevent it from acting, both defy the Constitution and are guilty of constitutional offences. It amounts to revolt against the Constitution.

The remedy in such a situation is for the President to act under Article 356(1) of the Constitution to impose his rule, and also, under Article 156 (2), to remove the Governor. Unless such constitutionally ordained exemplary actions are taken, it will not be possible to sustain parliamentary democracy in the country. The resignation of the Ministry on losing its majority, or the confidence of the House, is the sine qua non of the Cabinet system of democratic governance. It is the only civil and smooth way of transference of power, and the refusal of the defeated government to vacate office is an invitation to violence. The change of government by a resort to arms is against the grain of democracy. It is the negation of democracy. If such an incident is ignored, even once, it will become the rule and soon subvert the Consti-tution and convert democracy into an unwritten dictatorship.

It is necessary for all democrats to rise above their predilections and oppose such subversion of basic democratic requisites, and save democracy in this country. It is nothing short of the imposing blatantly an arbitrary power, mindless of the law and the Constitution. Let no part of this country ever experience the lawless regime the State of Maharashtra has experienced during November 12 to December 5, 2014.

Since such a constitutionally grave situation has arisen for the first time in this country (according to my recollection), it is necessary that all familiar with the constitutional law, apply their mind to the problem and suggest a solution. This is one of those questions which arise over a period during the operation of the Constitution and have to be answered with circumspection, erudition and constitutional wisdom.

The author is a former Judge of the Supreme Court (now retired). On retirement he was for sometime appointed the Chairman, Press Council of India.