This Article is From May 21, 2018

India For Sale? What Karnataka Has Flagged For Us

Could thou and I with Fate conspire
To grasp this sorry Scheme of Things entire!
Would not we shatter it to bits-and then
Re-mould it nearer to the Heart's Desire!

- Rubaiyat of Omar Khayyam

The Karnataka episode is over - at least for the time being. We can blame the BJP, Governor Vajubhai Vala and B S Yeddyurappa. But that is not fair. Governors have been disgracing themselves for years - and with increasing frequency. We have been going down this slippery slope for at least the past 50 years where Governors are partisan, bend rules, disregard norms and bring disrepute to the system.

Neither the Congress nor the BJP can claim to have clean hands in this matter. The Congress began the perversion of various constitutional norms, particularly with the repeated use (around 100 times) of Article 356, often to dismiss opposition-led state governments. And who can forget the Emergency? The BJP has now refined the art. Each party has suborned constitutional norms and practices for political ends.

To come back to Governors: there are always some honourable exceptions - but they are few and getting fewer. These are often ex-bureaucrats or retired military officers and non-politicians whose sense of honour remains intact. But our politicians do not like them, so they tend to be appointed with reducing frequency. Most of our Governors are political hacks, sent into retirement in Raj Bhavans where they do the bidding of their political masters in Delhi.

I doubt that many of the Governors are familiar with the constitution and constitutional proprieties and too few of them stand up for what is right. Many of them, in the words of former Chief Justice M  Hidayatullah, are "not forward looking, but looking forward."

I wrote recently on about who the Karnataka Governor should call first to form the government. Briefly, in the parliamentary system, it should be the party or combination of parties that have the best chance of forming a stable government. That is all that matters. Pre-poll and post-poll alliances, political differences, etc. are immaterial.

For instance, in 2010, the Conservatives and the Liberal Democrats in the UK formed a government after waging a brutal election campaign. In 2017, the Conservatives tied up with the small DUP, which opposes the Conservatives on many major issues, including Brexit. In 2017, in Germany, the parties fought a bruising campaign. No one had a majority and the government could not be formed for over six months until the two biggest formations tied up.

Why did that happen? So they could run a stable government, formulate policies and pass legislation, including the Budget.

The comments that I received on my article centred around the Sarkaria Commission's recommendations, the Bommai judgement or the Rameshwar Prasad case or the Goa case judgement or why we had to live with the British system of parliamentary democracy.

First, let us take the judgements. We forget that we are Indians - the masters of jugaad. There is no judgement that we cannot get past. And each party will selectively quote only that judgement that suits it. Each party has top-of-the-line lawyers who will argue in favour of any position. After all, that's what lawyers do. Every few years, a new judgment will be required as our venal politicians and pliable Governors reach a new low. And we will have a new judgement - but the problem will remain. That is why eminent lawyer Harish Salve recently said on NDTV 24x7 that he wanted the courts to be kept out of these matters.

And some have said: all these problems arise because we are saddled with this parliamentary system that is a legacy of the British Raj. But rather than blame the system, let us ask ourselves: how come the same system works in other Commonwealth countries like Australia, Jamaica, Canada, etc. Australia, in particular, has a history of coalitions and small majorities. How come their courts are not regularly asked to adjudicate upon the activities of the Governors of their countries and provinces?

Leaving aside other Commonwealth countries, look at post-war Germany, which also has a parliamentary democracy. In only one election (in 1957) out of 19 has one party - counting the perpetual alliance of CDU-CSU as one party - won a majority of seats in the Bundestag. But we have not heard of planes with legislators flying from Bonn (the old seat of government) to the ski resort of Zermatt in neighbouring Switzerland or being bussed from Berlin (the new seat of government) to Baden Baden, where legislators take the waters and wait for oodles of cash to come their way.

After the latest elections in September 2017, the CDU/CSU was the largest party but it had a bare 35% of the seats. The Bundestag was hopelessly deadlocked. It took around six months of hard negotiations to form a new government with the SPD which had another 22% of the seats. But did we hear of members of the Bundestag hopping from one party to the other? No - because there were no ATMs around.

The reasons for our problems are just two and clear to identify.

First, if this game of parliamentary democracy has to be played, there is one sine qua non. The umpire must be neutral. Second, the players must not be on the take.

Let us admit that our umpires, in this case, the Governors, are mostly not neutral. And the players - the politicians - are, by and large, venal. In the bad old days, politics was an honourable profession. Today, in most cases, it is a sordid business. Many politicians, once they win an election, work overtime to recover their investment multiple times because they may not win the next one.

Rather than look to other countries, we have to solve this problem and solve it our way.

We love cricket. Right? Remember what it was like in the old days in cricket? We complained about English umpires and they complained about ours. There were continuous allegations that umpires always favoured the "home" side. So, how did the International Cricket Council resolve the problem? By having a panel of international umpires and using neutral umpires.

We need to do something similar. We need to get Governors out of this game. They are like the old "home country" umpires. Here is what I suggest - as a bare bones principle. It needs to be refined, altered or modified by experts and others more qualified than I am. Here goes:

Whenever a state election is held and there is no clear majority, the following should be done:

1. All elected members to assemble in the Vidhan Sabha two days after the declaration of results and be sworn in.

2. The House to be presided over by a Supreme Court judge, assisted by two senior High Court judges, each with at least 10 years' service.

3. The three judges to be selected at random - but to ensure that no judge who has any link with the state is in the 'pool' from which the judges are selected.

4. Each party that has members exceeding 10% of the strength of the House can nominate a member to lead the government.

5. The judges ask the members present to vote in an open ballot.

6. In the event that no single nominee gets more than 50% of the votes cast on the first ballot, there is re-balloting.

7. For the re-balloting, there are a number of options. For instance, remove the member with the least votes and then re-ballot, and look for a member to get 50%+ and continue until you are down to two contenders. Or, after the first ballot, only the top three go into the second round. If no one gets more than 50% in the second round, then the top two go into the final ballot.

8. If, because of abstentions, no one gets support of more than 50% of the membership of the House, call fresh elections.

For Lok Sabha elections, we may need some modification to these rules.

But we are not done with cricketing analogies. What do we do to stop legislators from defecting? Of course, as we all know, it is all ideology and conscience - and not the nearby ATM - that leads to most defections. So, I thought, let us treat it like a Level 4 violation in cricket, the most serious violation. But this is worse that "bringing the game into disrepute". This is akin to match-fixing, requiring the severest punishment.

So, the penalty? Disbarred from taking part in any election in the country for the next 10 years. But that is not all. Since it is not conscience but cash that leads to this violation, let us use a provision from the Income Tax Act to elaborate this penalty. This disbarment for 10 years to apply to all relatives of the disbarred person - the relatives being those defined under Section 56(2)VII of the Income Tax Act. Else, the person's wife or son would stand in his place and probably win and defeat the objective of the penalty.

Is the punishment too severe? I think not. There has to be a heavy price for subverting democracy. As it goes in Gilbert and Sullivan's "The Mikado"

"My object all sublime I shall achieve in time -
To let the punishment fit the crime..."

It is clear that we just cannot go on in this way - suborning democracy, subverting the constitution, allowing money power to take over. Unfortunately, we have to depend upon members of parliament, many of whom also do not have clean hands, to get such a legislation through.

But if we cannot come up with a solution, there is a danger that we may descend from the great democracy our Founding Fathers bequeathed to us and degenerate into a giant kleptocracy.

In less than six months, on October 2, 2018, we begin celebrations of the 150th anniversary of the birth of the Father of the Nation. Perhaps this is the time to ask ourselves: is the present state of our democracy what the Mahatma lived for, worked for - and gave his life for?

Jai Hind

(Dorab R. Sopariwala is Editorial Adviser at NDTV and writes on political and economic issues.)

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.