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HVK Archives: Let's have elections under a caretaker govt

Let's have elections under a caretaker govt - The Times of India

Rajindar Sachar ()
7 April 1997

Title : Let's have elections under a caretaker govt
Author : Rajindar Sachar
Publication : The Times of India
Date : April 7, 1997

The country may find itself in a constitutional crisis if the H.D.
Deve Gowda government is voted out when Parliament meets on Friday.
In such a scenario what are the courses open to the President? Had
Mr Deve Gowda, immediately on withdrawal of support by Congress,
advised dissolution of the Lok Sabha, precedents and conventions
would have required the President to accept his advice,
notwithstanding the minority status of his government.

But the position changed after the President asked him to prove his
majority. Now the President can legitimately ignore his advice on
the well-accepted principle that a request now made would be to
avoid defeat while a motion of censure is under debate and
resorting to the device of dissolution would not be proper.

But it does not follow that the President is under an obligation to
give an opportunity to some other party to try to form an
alternative government even when it is not able to demonstrate its
majority before forming the government.

There have been no instances in England in last 1 00 years when the
sovereign had refused dissolution. Yet, as Dr Markenis says, "The
Crown may under certain circumstances refuse a dissolution to a
minority government (whether defeated or undefeated) provided an
alternative government is possible and able to carry on the
government."

>From the exchange of mutual vituperations, it does not seem
possible for any group to claim a majority, thus leaving the
President no option but to dissolve the Lok Sabha.

But then Sitaram Kesri says he has a right to be called to form an
alternative government even if the Congress numbers are fewer than
those of the BJP. His specious ground is that the BJP had failed
in the past to prove its majority.

Mr Kesri, of course, is well aware that he cannot command a
majority in the House. But as some observers claim, the Kesri game
plan is that even if he is defeated, he will recommend dissolution
which the President would have to accept, so that generate
elections will be held under the caretakership of the Congress
government. This game plan cannot stand any objective test. If the
President can refuse to accept the advice for dissolution rendered
by My Deve Gowda because he is in a minority, there will hardly be
any justification for his accepting similar advice by Mr Kesri. The
governor general of Canada had refused dissolution to the liberal
leader Mackenzie King in 1926 and instead invited the Conservative
leader Meighen to form the government in the belief that he would
be able to obtain a majority. When he failed, Mr Meighen sought
dissolution of Parliament which was granted by the governor
general. The ensuing election was won by the liberals and the
governor general was criticised very strongly for his decision.
There is no reason for the President to place himself in such an
embarrassing position.

There is a tendency to view the prospect of mid-term elections as a
catastrophe. Seeing the present standards of governance and the
deplorable functioning of various political parties, voters have an
inherent right to exercise their constitutional privilege of
recalling those legislators who have belied their expectations. As
David Butler says in Governing Without a Majority, "What after all
is dissolution but the referring of a political problem to the
decision of the ultimate sovereign, the people."

The important question that needs to be debated is who the
caretaker government should be till the elections to the Lok Sabha
are held. In the normal course, when elections are held on the
expiry of the term of the Lok Sabha, the incumbent government
continues and functions. But here we are faced with a delicate
situation arising out of a mid-term dissolution. To permit the
Gowda government to continue as caretaker if it loses a vote of
confidence would be to show favour. Nor, in my opinion, would it
be correct for the President to call either the BJP or the
Congress to form the government when it is known that they do not
have a majority, and on their failure to do so, permit either of
them to continue in a caretaker role. This, if allowed to happen,
will place the President in an untenable situation.

This concept of a caretaker government to hold general elections is
not a strange phenomenon. In Bangladesh, the 13th amendment to the
Constitution passed in March 1996 provides for a caretaker
government to hold all future elections. Such a caretaker
government will perform routine work and will not take any policy
decision, and they will be accountable to the President. The
general elections were held in 1996 under the supervision of a
non-party caretaker government and were generally. viewed as being
fair elections.

When admittedly the fairness, objectivity of functioning and moral
insensitivity of our political parties are suspect, the President
may be well advised to appoint a council of ministers of
non-political persons whose integrity and objectivity are broadly
acceptable to all the political parties. The supreme court has
held that Article 75 permits ministers, including the prime
minister, to continue for six months without being a member of'
either House. The President can therefore without any breach of
law or convention constitute a council of ministers from other than
legislators for a short period only for conducting the general
elections.

Political parties can hardly complain of any breach of
constitutional convention, considering that both the incumbent
prime minister and Mr Kesri, who yearns to be the future prime
minister, are not members of the Lok Sabha, despite the settled
constitutional convention in all elected democracies that the prime
minister must be a member of the Lower House -in this case, the Lok
Sabha.

(Rajindar Sachar is former chief justice of the Delhi high court.)



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