The premature dissolution of the Telangana Legislative Assembly has opened a Pandora’s Box with regard to the interpretation of various contentious constitutional provisions, which were left open-ended in the Constitution.
The onus to interpret them widely and conclusively has now been entrusted to the courts and a few of these open-ended issues were hitherto interpreted by various High Courts merely based upon the facts and circumstances that were presented before it.
However, as there was no settled principle of law on some of these plaguing issues a conclusive interpretation by the competent courts is the need of the hour.
Let’s start with the first moot point: Does the Chief Minister of a State was empowered by the supreme law of the land to decide solely on the dissolution of the House or does he need to secure a written consent from his Cabinet? This question assumes more significance in the context of a coalition government comprising many parties.
The courts opined that the consent from the cabinet is conditional precedent for recommendation of the dissolution of the House. However, the constitutional courts’ review jurisdiction in such a scenario has been constrained and it is merely limited for ascertaining the bona fides of such executive decision.
However, none of us are oblivious of a simple fact that in a Parliamentary democracy Council of Ministers have collective responsibility under Article 164 (2) and the Chief Minister has the sole right to recommend appointment of Ministers, of his own choice, to the Governor under Article 164(1).
Therefore, paying due heed to the aforementioned information, it would not be difficult for us to arrive at a plausible conclusion that the Council of Ministers may not act independently, as independent decision-making might detriment their political fortunes.
The second moot point is: Does Article 174(2) (b) grants absolute discretionary power to the Governor of a State to take a call on the dissolution of the lower house or such a power should only be exercised at the instance of the Council of Ministers? According to some judgments of various High Courts, the extent of discretion that the governor could exercise when the Chief Minister commands majority is grossly distinct from the case in which he is leading a minority government.
However, based on the established parliamentary conventions the following proposition appears to be well settled:
a)The Governor may not dissolve the House suo motu, without the express sanction of the Council of Ministers.
The keyword in the above convention is “MAY”. As “MAY” impose no binding obligation on the Governor, it is categorically open-ended and hence should be interpreted conclusively by the courts.
The third moot point is: Does the Chief Minister have absolute power to recommend the dissolution of the house or such a recommendation can only be exercised on few predetermined grounds? Again, the constitution is silent on this and left the responsibility of deciding this question based on the available conventions.
As per the parliamentary conventions there are two grounds on which a House can be dissolved prematurely:
1. When the Chief Minister senses some dissatisfaction in his party and wants to have a show down with the dissidents by calling for fresh elections.
2. If the Chief Minister’s overall majority in the House is very slender, and he finds it difficult to push his programme through the House.
While recommending the dissolution of Telangana Legislative Assembly the current caretaker Chief Minister of Telangana, K. Chandrasekhar Rao has alleged that there was a conspiracy hatched by some opposition parties, with an intention to stall the governance, in the State by approaching courts with false cases and hence it has become inevitable for him to recommend the dissolution of the House to curtail such immoral or unethical behaviour.
This proposition looks ridiculous because of the following reasons:
1. Moving courts against the excesses of the executive or legislature, if any, is a legal remedy available to the aggrieved;
2. If such cases were foisted by unscrupulous elements to attain ulterior motives, the same could be rebutted before the courts and could be exposed before the electorate.
Hence, as there is no conclusive enumeration of the grounds on which the Chief Minister can recommend dissolution of the House, this question is again open-ended and should be decided conclusively by the courts in order to circumscribe the wider power granted to the Chief Minister.
The fourth moot point is: Does the post of caretaker Chief Minister constitutionally ultra vires or intra vires? To answer it bluntly, there is no mention of caretaker Chief Minister anywhere in the Constitution of India; however, our courts in some cases have interpreted the powers, role and obligations of the caretaker Chief Minister.
For all practical and legal purposes, the so-called caretaker Chief Minister is as good as a ‘regular’ chief minister, except that the former should not take any major decisions. Again, what all decisions constitute major decisions was nowhere mentioned in the Constitution and hence could be interpreted by courts on a case-by–case basis.
The fifth moot point is: When there is a possibility for invocation of Article 356 of the Constitution why a caretaker government, which has resigned from the office, be allowed to continue?
Subsequent to the dissolution of the Telangana Legislative Assembly and before the conduct of elections in the State i.e., during the interim period, the responsibility of maintaining the law and order in the state should fall squarely either on the Governor (President’s rule) or on the caretaker government.
As per the parliamentary norms, and after ascertaining the majority, caretaker government was ordinarily installed with a presumption that it could efficiently uphold the law and order. However, the Constitution is mum on this issue and therefore it grants discretion to the Governor to choose from the available alternatives. Hence, intervention of courts in this aspect is also sine qua non to circumscribe the discretion and to establish a principle conclusively.
Constitution is a living document and it changes with the change in time. When there is a possibility of amending the Constitution to clear the air, with regard to several ambiguous provisions of the Constitution of India, failing to do so amounts to dereliction of legislative obligation.
Judiciary is the final interpreter of the Constitution and it has the bounden obligation of interpreting contentious provisions conclusively sans an iota of ambivalence in the minds of the competent authorities. If conventions start superseding the codified law, our claim of having the longest written constitution of any sovereign country in the world seems hollow. #KhabarLive