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Verdict a boost to democratic principles - The Observer

Sujit Chakraborty ()
20 December 1996

Title : Verdict a boost to democratic principles
Author : Sujit Chakraborty
Publication : The Observer
Date : December 20, 1996

Perhaps for the first time, a landmark constitutional judgement delivered by
the full bench of the Allahabad High Court on Thursday is far more than a
mere academic exercise as it provides an effective remedy as well.

Similar judgements in the recent past have only been a matter of historical
record. But today's verdict seeks to undo a patent wrong done to the
constitution and the democracy.

If only the Uttar Pradesh governor Romesh Bhandari had care to emulate
President Dr Shanker Dayal Sharma and taken the logical course of inviting
the single largest party (Bharatiya Janata Party) to form the government and
prove its majority within a reasonable time, perhaps he would have saved this
grave embarrassment to his office, action and the government at the Centre.

According to constitutional experts, political convenience or inconvenience
should not have any role in resolving the question thrown up by occasional
divergence between the perceptions of legal sovereign, that is the President
and his representative in the state - the governor, and the popular sovereign
which means the electorate.

It appears now that, in a way, people's verdict was disregarded in Uttar
Pradesh as It did not lend itself to the political predilection of the legal
sovereign. And the high Court verdict has now come as a saviour. restoring
the precedence of the people's verdict to the political preferences of the
legal sovereign.

In fact, experts aver that in the case of Uttar Pradesh, the constitution was
subverted in the misplaced zeal of promoting
and safeguarding "secularism."

More or less, the Allahabad High Court took the same position in holding
that the presidential proclamation on October 17 reimposing presidential rule
under article 356 of the Constitution in Uttar Pradesh which was subsequently
approved by the parliament is "unconstitutional, issued in colourable
excercise of power and is based on wholly irrelevant and extraneous grounds
and, therefore, cannot be allowed to stand.

The High Court's term categorising the proclamation of President's rule in
Uttar Pradesh as "a colourable exercise of power" will go down as understated
Indictment of the UF government in flouting the Constitution and giving the
go-by to accepted conventions. Read between the words, the overriding of
constitutional provisions for promoting "secularism" by the United Front
government amounted to bringing in "extraneous grounds" into consideration.

Of course, neither the Constitution nor the present Allahabad High Court
judgement has not provided room to the President or the governor on his own
for ascertaining who has the majority. That Is a prerogative of the
legislature.

It is because of this vagueness in the Constitution that the convention of
inviting the largest single party for forming the government was evolved.

It was former President R Venkataraman who first gave shape to this abiding
convention in the Indian context in 1989.

It was only when the leader of the largest party, Mr Rajiv Gandhi, declined
the offer that V P Singh was invited. But Mr Venkataraman also set the
precedent of stipulating a reasonable time frame for the government to prove
its majority on the floor of the House.

This convention as also the rider has passed the test of time. President
Shanker Dayal Sharma has conformed to this convention when faced with a
similar circumstances in the year 1996.

In fact, it can be credited to have saved the office of the President from
unseemly controversies since the advent of split electoral verdicts.

A president or his representatives in the states can do no more.

In the S R Bommai case, the Supreme Court has put it beyond controversy that
majority of a government is to be tested only and only on the floor of the
legislature.

The rest, including the legitimacy of the government which rides on its
demonstrating majority, is a function of the legislature.

Till such a test confirms or belies majority, it is in the fitness of things
to allow a government so constituted to run itself and address the needs of
the people and the republic.



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