The sudden exit of Tirath Singh Rawat as Chief Minister of Uttarakhand , a development the Bharatiya Janata Party sought to explain in terms of a constitutional roadblock to being elected as a legislator within six months, has led to thickening speculation about the fate of West Bengal’s Mamata Banerjee, another unelected Chief Minister. In a conversation moderated by Abdus Salam , M.R. Madhavan and S.Y. Quraishi thread through precedents and procedures as all eyes are firmly fixed on the Election Commission of India (ECI)’s next moves. Edited excerpts:
Should Chief Ministers be mandatorily picked from the pool of elected MLAs? Or at the very least, should a Member of Parliament resign immediately from the House if picked to lead a State?
M.R. Madhavan: Let’s look at it from the first principles of how the Constitution is. We have a parliamentary democracy, which essentially means that whoever has the confidence of the majority of the members of the Lok Sabha, in the case of the Centre, will be the Prime Minister. It also requires that all Ministers should be a Member of Parliament (MP) or get elected within six months. Rather, it puts it in negative terms. Anybody who is a Minister and is not an MP for six months automatically stands to be disqualified from the administration. It visualises the Chief Minister as being elected by the members of the House of their own free will. And it assumes that the Chief Minister is a member. There are, of course, exceptional circumstances, especially for Ministers. Let me mention the fairly non-controversial case of Dr. Manmohan Singh in 1991 when there was a crisis, and Prime Minister P.V. Narasimha Rao wanted him as the Finance Minister. Was that for the national public good? In hindsight, we would say yes. In the case of a Chief Minister, it becomes slightly dicey. There is a party high command, especially in the case of national parties, which decides who will become the Chief Minister. Effectively you have removed the whole concept of the person being the popular choice of the elected people. So, the Chief Minister is an indirectly elected person by the directly elected members. But now the Chief Minister dictates how each of those persons will vote, because with the anti-defection law, we have weakened that accountability mechanism drastically. What is the way out? Not very clear.
The second part of your question is much clearer. If you look at various other parts of the Constitution, it’s clear that the Constitution expects a person not to hold more than one constitutional position at a time. If you look at Article 101, it says that if a person is a member of both Houses of Parliament, he or she loses membership of one; if a person is an MP and gets elected as an MLA, or vice versa, he or she has about 14 days to resign from one.
When you are an MP and become the Chief Minister , you are the head of the executive of that State. So, what is your primary role? Is it to vote as a Member of Parliament? Or is it to be in the State and attend the State’s legislature and be accountable to it? In that at least, we should definitely amend the Constitution to say that if you are going to be the Chief Minister or a Minister of a State, you should resign your membership of another House before taking up the role. That is, one should not occupy two constitutional offices concurrently.
S.Y. Quraishi: Whether it’s a good thing or a bad thing is not the issue for us to decide, because the framers of the Constitution provided for this fresh air coming from outside, if need be, with the condition that within six months they need to get elected. It’s a good provision and I feel we don’t need to tinker with it because it does restrict options. Of course, this option should be used intelligently and with full honesty, and not just to tinker with politics. And it should be used sparingly.
So, you want the door to remain open for lateral entry. Coming specifically to Tirath Singh Rawat’s case, was his election as MLA a constitutional impossibility?
SYQ: He could have easily contested the election. Didn’t he anticipate that he would have to get elected in the thick of COVID-19? To say that in the time of COVID-19 it will not be advisable to conduct elections and therefore I’m resigning is a very flimsy excuse. It is some kind of a deeper political calculation. It’s a build-up for something more serious, to create the precedent for West Bengal [bypolls] whereas the entire West Bengal [Assembly] election was held during COVID-19. And the Bihar election was held during COVID-19, and it was very well done. The ECI issued guidelines for COVID-19 before the Bihar election, which were beautiful. By then, it had the global experience of 70 countries which had conducted elections in the thick of COVID-19 and done them very well, [to learn from]. India learnt a lot from all of them, and then formulated its own guidelines. Having conducted a bigger election, what stopped the ECI from conducting a by-election in Uttarakhand? My feeling is that a scene may be created where by-elections won’t be held. This should not create a precedent — that it would be dangerous to hold a by-election.
Mamata Banerjee has four months left to get elected as an MLA. Several Opposition leaders have suggested that Mr. Rawat’s case portends a similar predicament for her. Is there reason for her to worry?
MRM: The constitutional position is clear, right? If she doesn’t get elected, she can’t be the Chief Minister . It is the job of the ECI, and not of anyone else, to ensure that there is no constitutional crisis. Let’s visualise the general election circuit for the country. In the case of a State, the Constitution still permits stopgap things like President’s Rule. What would you have done for general elections if they were due this year in the middle of the pandemic?
SYQ: I hope my apprehension is just an imagination and that it doesn’t turn out to be correct, because the election must be held. Otherwise, there will be a constitutional crisis. And it will be humanly created rather than being a gift of the Constitution. After all, a huge election was conducted recently and all went well. But in West Bengal, public meetings were happening. We were all expressing our concern then: ‘What the hell is happening? Why are you allowing such huge meetings?’ Surprisingly, the Prime Minister, instead of getting concerned looking at those crowds, in violation of his own guidelines for the whole country, was showing his excitement like a child. Those public meetings were the only undesirable thing; they should have been banned. They were eventually banned, but that decision should have been taken earlier. With the COVID-19 guidelines and their implementation ensured, there is nothing to stop the ECI from conducting the by-election for Mamata Banerjee. There should be a ban on public meetings because that is the only security risk of COVID-19. Nobody has any reason to complain because the rules apply to all parties.
Given the extraordinary circumstances of a pandemic raging since early 2020, should we as a polity be flexible on constitutional and legislative deadlines?
MRM: I would say that you cannot defer the elections; you’ll have to pull them off in some manner. The U.S. did that. If you say that under extraordinary circumstances, the constitutional requirement of parliamentary elections in five years could be deferred, then you will find people figuring out ways to create extraordinary situations more and more often, and these situations will become ordinary.
The ECI has the choice, because if an election is not held, it leads to a constitutional crisis. And the ECI’s job is to ensure that there is no constitutional crisis instead of creating one. Under Section 151 of the Representation of the People Act, it is provided that if only one year is left of a House, a by-election will not be held. But it is actually at the discretion of the ECI to make an exception. And it has been making an exception only for the Chief Minister. Because in a House of 200-300, about three-four vacancies are always there. The government being allowed to fall because the ECI says it cannot hold an election... that would be the very unbecoming of the Commission. Now, in Section 151, a subsection provides that the ECI in consultation with the Central government certify that it is difficult to hold the by-election within the set period. I hope we don’t read into that.
There’s also the question of institutional resilience. What more can be done to insulate bodies such as the ECI from being seen as susceptible to external pressures?
MRM: There’s a legitimacy of a government being formed in a free and fair election, and everybody subscribes to that. If that legitimacy is undermined, we are in deep crisis. What does the legitimacy rest on? It rests on public belief and public trust in the ECI holding free and fair elections. The ECI has been a very trusted institution for a fairly long time now. Is that public trust getting bigger or not? That’s a big question.
SYQ: The ECI has a constitution designed for it to be insulated from the government. Which is why once appointed, the Chief Election Commissioner cannot be removed except through impeachment. Now, there are two reforms that we have been shouting for. The Commission is appointed by the government of the day without consulting the Opposition. It is a different matter that all the Election Commissioners appointed through this route performed very well. And we hope that it will continue to happen. But hope is not a strategy, a system has to be in place. Nowhere in the world does such a situation exist. In some countries, there is scrutiny by Parliament. In some cases, the candidates are interviewed by Parliament. The systemic change we are pleading for is that appointments should be through a collegium. And promotions should be automatic, on the basis of seniority. Second, the removal procedure of the two Election Commissioners. They are not protected, so they feel they are on probation. They’re always looking over their shoulder to see if the government is happy with them or not. That fear is absolutely dangerous and disastrous. So, that protection has to be provided. Government after government has not paid any heed to this extremely important and critical issue. And even the Supreme Court has not claimed the issue, despite its grave importance.
MRM: Today, the CBI [Central Bureau of Investigation] Director is appointed by a committee which includes the Chief Justice of India, the Prime Minister and the Leader of the Opposition. Is the ECI far more fundamental and important an institution than the head of the CBI? Obviously, yes. This would also provide greater authority to the Commission because appointments would be made after an agreement across political lines. The Central Information Commission is not a constitutional body, it is a statutory body, but appointments are through a collegium. The CBI is not even a constitutional or statutory body. Why do we have our priorities upside down?