The concern expressed by the Supreme Court on the current impasse in the formation of the Delhi government is legitimate and well founded. Since February, the legislative assembly has been in suspended animation. Its members are drawing their salary and enjoying other perks of membership without performing any legislative duties. Besides, they preside over the spending of crores of public money, earmarked for the so-called local area development schemes. It is only fair that government is formed and the legislative assembly resumes work, or fresh elections are called after dissolving the assembly. But, going by the Constitution, the latter should be the last option.
For obvious reasons, none of the present MLAs, irrespective of the party he or she belongs to, wants to take the risk of fresh elections. But, as the Constitution bench lamented, one party says it does not have the numbers to form government, the other has no desire to do so and the third is not in a position to stake a claim.
The National Capital Territory of Delhi is a Union Territory administered through a lieutenant governor (LG). There is an elected legislative assembly, somewhat comparable to those in the states, except its legislative powers do not extend to matters concerning public order, police and land. The Constitution also provides for a council of ministers headed by a chief minister (CM). The CM “shall be appointed by the president”. The use of “shall” implies a definite obligation to appoint a CM.
Under Article 86(2), the president can send a message to either House of Parliament and under Article 175(2), the governor can send a message to a House of the state legislature. In each case, the House concerned must “with all convenient dispatch consider any matter required by the message to be taken into consideration”. The government of the National Capital Territory Act contains a similar provision on the LG sending a message to the legislative assembly.
In a situation where it is difficult to decide who commands the confidence of the legislative assembly of Delhi, the LG could send a message to the House, asking it to elect a leader who can then be recommended to the president for appointment as CM. This would keep the LG and the president above controversy, as the leader would be picked by the members themselves on the floor of the House. Since the CM would have been elected by the assembly, it would not be necessary for him or her to seek the confidence of the House after appointment. The scope for horse trading would be minimal. If the election were by secret ballot, there would be no risk of anyone being disqualified from membership under the anti-defection law in the Tenth Schedule. The National Commission to Review the Working of the Constitution (2000-02) felt that the leader of the House (Lok Sabha or state assembly) could be elected by the House and the person so elected could be appointed PM/ CM. It is the responsibility of the president or governor to find out who can command such confidence.
On December 19, 1996, the Lucknow bench of the Allahabad High Court delivered a historic judgement. The three judges — Justices B. Kumar, B.M. Lal and M. Katju — held that the only way out of the deadlock in Uttar Pradesh then was for the governor to leave it to the House to indicate the name of the leader who had its support. It is constitutionally mandatory for the governor or LG to constitute a popular government and if he finds it difficult to decide on whom to call to form the government, he could take recourse to sending a message to the House, asking it to elect its leader.
In early 1998, the crisis in UP culminated in the election of the CM by the state assembly under the direction of the Supreme Court. The court had directed that a special session of the assembly be convened, in order to hold a floor test of the respective strengths of the two claimants to the CM’s chair. Voting was by secret ballot. After the Supreme Court verdict in this case (Jagdambika Pal vs Union of India and Others), the device of the House electing the CM could be said to have had the sanction of the court. This ensured that the head of the state remained above political controversy, the decision on government formation was taken on the floor of the House, the heavy cost and strain of frequent elections was avoided and the government was ensured reasonable stability.
All the accumulated wisdom of the past and the provisions of the Constitution thus suggest a clear way out of the present impasse in Delhi. It is hoped the LG will rise to the occasion and send a message to the assembly to elect its leader by secret ballot.
The writer is an advocate, constitutional law expert and former secretary general of the Lok Sabha