A pertinent question for all parties

If Bommai Case is a precedent for the majority test, administering the oath of office to the defected MLAs as Ministers must also stand judicial scrutiny.

The questions that The Hans India has posed and sought an answer on behalf of the civil society is not a day late (Legislative Decline, Editorial, Hans India, March, 9). The question must be answered not only by the TRS for emulating the Congress, in subverting the values of the Parliamentary Democracy, but by all the parties.

The ruling and the opposition are both the eyes of the democratic set-up. When the demerits in the functioning of a government or the party in power are brought to their notice or of the people, it has been a political fashion to pose a question: “What were you doing when the other party was in power? Did you not perform like this?” It is childish. The Indian democracy is 65-years-old. It is an admission of violation of the election manifesto and blurring of the people’s mandate.

It has been repeatedly said that the corridors of the Raj Bhavans shall not be a political playground for demonstration of the veracity of the righteousness of defections. But the Governor has an option to refer the matter to the President to seek the opinion of the Supreme Court of India under Article 143 of the Constitution of India. If Bommai Case is a precedent for the majority test, administering the oath of office to defected MLAs as Ministers must also stand judicial scrutiny. By administering the oath of office in a haphazard manner, the Governor is also violating the oath of office he has taken. It is worth noting the pious wishes of Constitution makers here.

Shri Alladi Krishnaswami Ayyar (Madras: General) said June 1, 1949, in the Constituent Assembly thus: "Sir, there is really no difference between those who oppose and those who approve the amendment. In the first place, the general principle is laid down in Article 143 namely, the principle of ministerial responsibility, that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the Article goes on to provide "except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. So long as there are Articles in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet or to refer to the President, this Article as it is framed is perfectly in order. If later on, the House comes to the conclusion that those Articles which enable the Governor to act in his discretion in specific cases should be deleted, it will be open to revise this article. But so long as there are later articles which permit the Governor to act in his discretion and not on ministerial responsibility, the article as drafted is perfectly in order.”

"The only other question is whether first to make a provision in Article 143 that the Governor shall act on ministerial responsibility and then to go on providing "Notwithstanding anything contained in Article 143........he can do this" or "Notwithstanding anything contained in Article 143 he can act in his discretion."I should think it is a much better method of drafting to provide in Article 143 itself that the Governor shall always act on ministerial responsibility, excepting in particular or specific cases where he is empowered to act in his discretion. If, of course, the House comes to the conclusion that in no case shall the Governor act in his discretion, that he shall in every case act only on ministerial responsibility, then there will be a consequential change in this article. That is, after those articles are considered and passed it will be quite open to the House to delete the latter part of Article 143 as being consequential on the decision come to by the House on the later articles. But, as it is, this is perfectly, in order and I do not think any change is warranted in the language of article 143. It will be cumbrous to say at the opening of each article "Notwithstanding anything contained in article 143 the Governor can act on his own responsibility".

By: K C Kalkura