It is said that ‘misfortunes don’t come alone’. The week beginning May 7, 2023, was brutal for the BJP. On May 11, the Supreme Court delivered two judgments. Both were of Constitution Benches (five judges) and both interpreted key provisions of the Constitution. Both amounted to two tight slaps on the face of the government. The Karnataka election results came on May 13.

The BJP government’s refuge in the case of adversity is ‘silence’. Neither the usually self-assured Hon’ble Home Minister nor the voluble former Hon’ble Law Minister reacted to the judgments or the Karnataka election results.

Constitutional transgressions

The Delhi case was quite simple. In 2018, the Supreme Court had interpreted Article 239AA of the Constitution and held that in all matters save public order, police and land, the executive power was vested in the Council of Ministers of the Delhi government and the Lieutenant Governor, Delhi was obliged to act on the ‘aid and advice’ of the Council of Ministers. There was lingering doubt about ‘Services’ — who will control the civil servants. The issue was put to rest by the May 11 judgment and it was declared that the Ministers had control over the ‘Services’. Every LG since 2014 must share the blame for not honoring the essence of a democratic, federal system of government.

Also read: Across the aisle by P Chidambaram: Silence is spurious golden

The second case was complex only because the provisions of the Tenth Schedule of the Constitution had not been interpreted authoritatively and unambiguously in previous judgements. After the Tenth Schedule was amended in 2004 there is no concept of a ‘split’ in a legislature party. The Tenth Schedule allowed an exception from the perils of defection only if one of two conditions was satisfied: (1) if the parent political party merged with another political party and not less than two-thirds of the members of the legislature party agreed to such merger; (2) if the legislator(s) has/have not accepted the merger and opted to function as a separate group in the legislature. If neither of the two conditions was satisfied, the dissident legislators continued to belong to the legislature party and were obliged to obey the whip of the parent political party.

Unconstitutional government

A situation arose in Maharashtra where 16 legislators led by Mr Eknath Shinde broke away from the Shiv Sena legislature party. Their parent political party had not, on that day, merged with another political party (and has not done so even today). None of the exceptional circumstances under the Tenth Schedule existed. Hence, the dissidents were obliged to act and vote as directed by the whip of Shiv Sena issued on June 21, 2022.

Defying the whip, the Eknath Shinde group joined hands with the BJP. The Governor, without any cause (as found by the Supreme Court) asked Mr Uddhav Thackeray, chief minister, to seek the vote of confidence of the legislative assembly. Mr Thackeray (on poor advice) resigned without facing the legislative assembly. Promptly, the Governor, appointed Mr Shinde as the chief minister and swore in a coalition government of the Shinde group and the BJP. The Shiv Sena pressed the Speaker to disqualify the 16 legislators. The Speaker sat on the petition (which has become the practice in many legislatures).

The Supreme Court ruled that the ‘Whip’ is the person appointed by the political party (in this case, Shiv Sena); that the Governor had no cause to call a session of the legislative assembly and direct Mr Thackeray to secure a vote of confidence; and that the Speaker was obliged to decide on the disqualification petition as soon as possible.

In this column, I am concerned with the conduct of the Constitutional functions. It is clear that the Governor exceeded his jurisdiction and the Speaker did not exercise his jurisdiction. Both were guilty of dereliction of duty. Both were complicit in installing or allowing an unconstitutional government to remain in office since June 2022.

Also read: Across the aisle by P Chidambaram: The rhetoric and the reality

The overarching goal

The infamous Operation Lotus(es) in different states; the Bulldozer justice in Uttar Pradesh, Madhya Pradesh and Assam; the denial or reduction of funds to non-BJP ruled states on one pretext or other; the rash of criminal cases against opposition political leaders; the Constitutionally-suspect laws such as the amendment of Article 370 and the law on electoral bonds; the threat of enacting a Uniform Civil Code; the threat of creating a National Register of Citizens; the use of List III-Concurrent List to override State laws (eg education); the usurpation of taxation powers under the GST laws; And many other actions are aimed at achieving one overarching goal — to bring 140 crore people under one umbrella of governance under an omnipotent and omnipresent central government. It is called ‘centralism’. Examples of countries where ‘centralism’ prevails are China, Russia, Turkey, etc.

The two judges of the Supreme Court have interdicted the drift towards ‘centralism’. The Karnataka verdict has derailed the vaunted double-engine government. The best inoculation against ‘centralism’ is to keep our electoral and political system plural — several parties winning power in the states and at least two parties contesting for power in the Centre. Two battles have been won in the Supreme Court and one in Karnataka, but many more lie ahead.

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