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Rape of the Constitution!
by Dr. Rajinder Puri Bookmark and Share

Despite the Karnataka Chief Minister claiming a majority and willing to prove it on the floor of the House Governor HR Bhardwaj remained unmoved. He refused audience to BJP MLAs reinstated by the Supreme Court who are backing the government. He has instead written to the Union government recommending dissolution of the assembly and imposition of President’s Rule. There is no need to repeat that the Governor is grossly violating the spirit of the Constitution while dealing with the crisis in the state. Eminent jurists have already lambasted his conduct. Mr. Soli Sorabjee has described him as behaving like the leader of the opposition rather than a Governor discharging his constitutional duties. 

Consider this gem spoken by the Governor as he justified refusal to convene the assembly and ranted about preserving the Constitution: “Floor tests in the assembly have not helped Karnataka. These have led to manipulation.” By manipulation he presumably means political persuasion which is part and parcel of democratic functioning. If there have been used any illegal methods of persuasion he must specify them instead of talking vaguely about “horse-trading”. He should know that the reinstated BJP MLAs have good reason to revise their attitude towards the government. Offered a reprieve by the Supreme Court (SC) they have decided to continue in the House rather than invite repeat expulsion by voting against their party whip and attracting the anti-defection law. 

If in the Governor’s view floor tests in the assembly do not help Karnataka, what is the alternative? The arbitrary will of the Governor to decide what is good for Karnataka? Clearly, the Governor deserves to be sacked.  He is as Governor no more a blind Congress party loyalist acting as the Dynasty's agent to help Ottavio Quattroachchi to recover money from his frozen bank account in London. But who can sack the Governor? 

According to the SC ruling in the Dr. Raghulal Tilak case (1979) in no manner is the Governor “subordinate or subservient” to the Union cabinet. The Governor therefore is accountable to the President who appoints him. Alas, according to the ruling in the Shamsher Singh versus the State of Punjab case the President is a titular head and must follow the advice of the cabinet! Where does this self-contradictory verbal juggling by the SC in two different rulings leave us? It makes confusion worse confounded! 

There was no rationale for the SC to specify the President as a titular head except the irrational interpretation of the Constitution bequeathed by Pandit Nehru against the correct view of Dr. Rajendra Prasad. Nehru’s view was blindly accepted by a whole bunch of sycophantic legal luminaries down the decades. Even Dr. Ambedkar against his own instincts lamely bowed down before the majority view to accept the President as a mere constitutional head on the strength of Article 74 (1) of the Constitution. That article stated: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President.” Did not our great legal luminaries know the English language? “Aid and advise” does not mean to order and to compel. 

To cover this fraud the 43rd Amendment was introduced later. It added that the President must act in accordance with the advice of the cabinet. But despite this amendment the President must conform to the cabinet’s advice only with regard to subjects that come under the cabinet’s purview. The SC ruling in the Dr. Raghulal Tilak case clearly states that the Governor in no way comes under the purview of the cabinet. So what prevents the President from taking unilateral decision?  

As far as the present incumbent is concerned there is plenty to inhibit the President. Arguably the Election Commission (EC) was remiss in its duty by failing to debar Mrs. Pratibha Patil from being a candidate for the Presidency. In the case of MPs and MLAs ongoing court cases or investigations do not debar candidature unless there is conviction. However in the case of Presidential candidates there is a difference. Mrs. Patil was facing a CBI investigation of alleged misuse of her office as Governor to help cover up a murder case against her kin. But the moment she was elected President she was above questioning and above being probed by any investigative agency. In the event should her candidature have been allowed? Earlier Dr. Venkataraman also became President despite the ongoing probe in the HDW submarine investigation ordered when he was Defence Minister and his daughter was representing the HDW Submarine firm. 

The Constitution is violated and the system is not working because the President cannot exercise the powers that it grants to the office. Instead of an honest reappraisal of the way in which the Constitution is being implemented the nation is engaged in a fierce debate related to the fruitless proposal of establishing a Lokpal. History will severely judge our legal luminaries who through moral cowardice are afraid to speak the truth about the Constitution for fear of overturning a flawed national consensus. Meanwhile the Constitution continues to be raped. Our democratic system continues to crumble. 

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Comments on this Article

Comment Croonies and expert trouble-makers have been appointed Governers till now with the purpose of destablise the govts. of opposition-parties. This shameless act of Karnataka-governer is no different from such brazenly politically motivated actions of such kind of constitutionl rape of democracy in the past.Enough is Enough. Not anymore of this.The buck must stop here and now.

Raj Rajeshwar Sharma
05/17/2011 11:55 AM

Comment Such things will continue to happen if minions, instead of individuals of stature, are posted as governers.

It is not too far off in the past when Ram Lal, former Chief Minister of Himachal was posted as governer of Andhra. He dismissed NTR to appease Mrs. Indira Gandhi.

The courts struck it down and Mr. Dhar, the famed cartoonist with Hindustan Times, came up with the classic cartoon of Mrs. Gandhi telling Ram Lal " I had asked you to banish Nepotism, Terrorism and Regionalism from the state(!) and you dismissed NTR Rama Rao"

Ravinder Malhotra
05/17/2011 00:04 AM

Comment Indeed, the governor has acted shamelessly, that is clearly out of established norms.

Just checked a few news papers - none of those editorials or opinion page even dare to mention the episode and I believe in tomorrow’s editions too, none of them will dare to put any views on this topic.

May be, only after few more developments, that puts these news agencies on safer side, they will publish something on this topic expressing some opinion !

So, how can average citizen form real opinion on such crucial matters ?

Dinesh Kumar Bohre
05/16/2011 09:44 AM

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