Rajeev Dhavan's Nine-Point Legal Agenda for New Government

Rajeev Dhavan, in this article in Mail Today, outlines a nine-point legal agenda for the new Government. Each of these points will require elaboration; Dhavan has compressed them in order to provide a summary, a kind of ready reckoner. Starting with party democracy, he compliments Rahul Gandhi for attempting a genuine mobilisation of youth. How can the EC's requirements on party democracy be strictly enforced? He has no answers. Secondly, he refers to Justice Ravi Dhavan's solution in the Patna High Court (2004) that if people in jail cannot vote, they cannot stand for elections, but doesn't indicate his own stand. Thirdly, he contradicts himself when expresses his opposition to ban on dissemination of results of exit polls, before voting concludes, while agreeing that they influence an increasingly literate and TV watching populace. Should we then consider this as a permissible influence? He then joins others who want the voting period to be shortened from a month to a week or one day, but doesn't sufficiently deal with the logistical problems of providing and moving security. Fourth, I agree with him that pre and post-poll allies must be treated alike by the President, faced with a hung Parliament. He also suggests that the President should choose the largest minority,(party or a combination) if a party claiming majority support is not available. He wants the arithmetic solution to be placed in an Instrument of Instructions as intended by the Draft Constitution. President Pratibha Patil must listen to at least one of his suggestions that she should not ask the PM to seek a vote of confidence. But what if that largest minority is opposed by the majority of Members of the newly constituted House? Again, he has no answers.

What Makes Us Happy?

This is an interesting article from The Atlantic. Precisely, something which you would love to read to have a break from LAOT.

Electoral Verdict to Spur Reforms

With the return of the Congress government to power and with Dr. Manmohan Singh set to continue as Prime Minister, corporate India is likely to witness a series of reforms in the near future. Unlike the previous stint where the Government was hamstrung by coalition politics (but nevertheless achieving a record rate of economic growth), the reforms are likely to be bolder this time around as it appears to largely have a free hand in policy-making. Industry has given its thumbs up to the verdict and the markets are likely to witness a steep climb today when they open for trading, signalling the acceptance of the electoral result.

As far as matters relating to economic laws are concerned, the key outcome could be the enactment of reforms to company law. The Companies Bill, 2008 was introduced in the Lok Sabha on October 23, 2008. It seems not to have gained much traction since then as that was followed by the Mumbai attacks in November 2008 when the attention of law makers was diverted to more pressing concerns such as safety and security of the country (and rightly so), after which the election process put the issue to the backburner. The issue will hopefully be brought to the forefront so as to achieve an overhaul of Indian company law, which has been pending for over a decade now.

At a broad level, other issues on the agenda include the clarification of the tax regime for limited liability partnerships, finalisation of merger control provisions under competition law and streamlining of the foreign investment policy of the country (particularly with reference to the sectoral limits on foreign investment). This column in the Mint sets out a more detailed list of the key tasks ahead for the new government in terms of economic reforms. Finally, another event that would be viewed with a great sense of anticipation is the full Budget, which reports suggest will be presented in the Parliament session beginning in June (note that the Government had only presented an Interim Budget prior to the elections).

Should Manmohan Singh seek a vote of confidence?

Well, the latest results suggest that the UPA may end up with 260 seats. Important Congress leaders like Kamal Nath have declared on television that the party is averse to seeking support from post-poll allies to make up the shortfall of 13 seats. The Fourth Front, which has 27 MPs may be willing to support, but the Congress is reluctant to accept it because of the hidden conditions of support which the Government may have to fulfil. Some independents have already extended support, said the Minister of State in PMO, Prithviraj Chauhan. The strength of Others is 29. Is the UPA hopeful of securing the support of 13 Independent MPs among these Others? What will be their conditions for extending support? The question can well be asked, is it necessary to fill this shortfall?

The BJP has clearly said that though the verdict is not a clear majority, it believes that the mandate favours UPA. The Left parties too have declared that they would not question the majority character of Manmohan Singh Government.

If you look at it academically, if there is a gap between the majority required, and the actual strength of the alliance forming the Government, it is a cause for concern with regard to the stability of the Government. It is immaterial whether this gap is huge or narrow: because Governments can be destabilised even by one MP as we had seen in 1999 when the Vajpayee Government fell.

Realistically, however, it is not a ground for denying a claim of such alliance to form the Government. There is no Constitutional bar on minority Governments from being formed. Should such a Government be asked to prove its strength in the Lok Sabha at the earliest? Well, that can be an invitation to Opposition to gang up, when no one in the Opposition has questioned the lack of majority of the new Government being formed. The President ought not to impose such conditions on the Government. Article 75(3) only requires that the Council of Ministers shall be collectively responsible to the House of the People.

There are at least four similar precedents. In 1969, Indira Gandhi was reduced to a minority because of the split in the Congress. The Left parties extended issue-based support to her; she did not have to prove her majority.

In 1998, the newly formed Vajpayee Government had to seek a vote of confidence, as President Narayanan specifically asked it to do so. The President said in his communique: "The number of MPs supporting the formation of a government by the BJP now comes to 264. This number - 264 - remains short of the halfway mark in the total House of 539. However, when seen in the context of the TDP's decision as conveyed to the President by Shri Chandrababu Naidu, to remain neutral, the number of 264 does cross that mark." It was, therefore, a paradox why Narayanan requested Vajpayee to seek a vote of confidence within 10 days. He could have spared the Government of this unnecessary stress when he was satisfied with its majority strength. It is tempting to compare the present situation with 1998. None of the parties comprising the Third and Fourth Fronts have declared, unlike the TDP in 1998 - that they would remain neutral. Narayanan probably requested the PM to seek a vote of confidence, in view of the uncertainty surrounding his formation of the Government. The AIADMK and its allies had delayed the submission of formal letters of support to Vajpayee, and Naidu had only telephonically said he would remain neutral.

In 1991, P.V.Narasimha Rao, also heading a minority Government, moved a motion seeking confidence in his Ministry on the advice of the President, R.Venkataraman. The BJP, which was puzzled at Rao's action, opposed the motion, and the Third Front parties abstained. There were 36 vacancies in the House,because elections were not held in Punjab and J&K. Rao won the motion. The President was incorrect in suggesting to Rao to seek confidence in his ministry. In 2008, when Manmohan Singh Government lost the support of the Left Front, Singh decided to seek a vote of confidence on his own, and proved his majority.

The inference from these precedents would be that Manmohan Singh must seek a vote of confidence himself, without the President asking him to do so. But each of these precedents cited here was unique, and the facts and circumstances preceding the debate on confidence motion are not exactly similar to the present situation. As long as there is no serious challenge to Manmohan Singh's claim to form the Government, there is no need to test his majority strength in the Lok Sabha.

Election Outcome: Likely Scenario

Even as exit poll projections revise their estimates of outcome in Tamil Nadu, I depend on my understanding of the state's voting behaviour in the past. As this is one state which can decide who can form the Government, let us look at it closely. In fact, the revised estimates have surprised a columnist sympathetic the BJP to the extent that he has now conceded that Manmohan Singh forming the Govt. is now a certainty (Management of expectations). According to the revised estimates of CNN-IBN and NDTV exit polls, the DMK-Congress combine is likely to sweep the polls.

I have been interested in the voting behaviour of voters in different States. One aspect of this interest has been to find out why the voters in Tamil Nadu have always given a decisive verdict in favour of one party or combination or the other. One consequence of this trend has been a single party government in the State, even as they voted one of the regional parties to power. When it comes to the Lok Sabha election, however, the party or alliance which is allied to a national party likely to form the Government at the Centre has been the beneficiary of the mandate in the State.

Let us look at the past trends. In 1998, the BJP and the AIADMK had an electoral understanding and swept the polls. In 1999, AIADMK's withdrawal of support, bringing down the Government at the Centre did not go down well with the TN voters. The BJP-DMK alliance swept the polls in 1999. Despite many grounds for withdrawal of support, the DMK kept the support going till 2004, and it is only on the eve of the Lok Sabha elections, the party switched sides, and had an alliance with the Congress. Although the DMK switched alliances, it did not destabilise the Government at the Centre. The DMK-Congress alliance was rewarded with a decisive mandate. The BJP and AIADMK had an alliance in 2004, but the voters did not rightly think that the BJP was in a position to form the Government at the Centre, and even if it was, it did not choose a reliable partner, considering what she did in 1999. Analysts overestimate the arithmetic factor in Tamil Nadu, by suggesting that whoever has a bigger alliance, in terms of number of partners, is likely to sweep the polls. But this is a very limited understanding, and simplistic because it does not explain whether the voters are aware that they are voting in a Lok Sabha election. My alternative thesis explains this rather satisfactorily.

In 2009, the AIADMK did not have the slight advantage it had in 2004, when it aligned with the BJP. Instead it aligned with the Left and the smaller parties, who according to the TN voters, are unlikely to form the Government on their own at the Centre. Therefore, the exit poll projections in TN, contrary to what the opinion polls said, are reliable. Many analysts have said this election had no national issues or that each State voted on State issues. Even as I don't agree with this analysis at the all-India level, at least in TN,the voters have always been distinguishing between state assembly and Lok Sabha elections. Well, this is my tentative analysis. I will stand revised, and probably look for alternative answers if I am proved wrong tomorrow.

UPDATE: With the trends available (4 p.m.May 16), I don't see the need to revise my analysis of why the TN voters voted the way they did. Even if it is not a sweep, it is an overwhelming mandate in favour of the Congress-DMK alliance. In the comments section, Srinivasan Ramani rightly suggests that the DMDK's inroads might have made a sweep impossible. AIADMK aligned only with the BJP in 2004, and the TN voters correctly did not see the combination capable of forming a stable Government at the Centre. One can discern one more factor. Ever since Jayalalithaa destabilised a Government at the Centre (in 1999), the AIADMK-led alliance has not received a favourable mandate in the Lok Sabha elections. As the TN voters favour stability at the Centre, they appear reluctant to give a mandate to the AIADMK in the Lok Sabha elections, even if they are willing to let AIADMK to return to power in the State.

Options before the President

With a hung Parliament being forecast by all the exit polls, the focus is now on the President, Pratibha Patil. There is a consensus veering around among the observers that she must ask for letters of support in respect of a claimant, and only if the numbers reveal a reasonable prospect of the Government surviving the floor test in the new House, she must invite the claimant to form a Government. But things are not as straight-forward as it may seem to be. Let us imagine that NDA with its post-poll allies is able to convince the President of the support of 250 MPs through letters of support. But the Congress, with its pre and post-poll allies is able to muster only 240, but is assured of the Left's abstention (let us again imagine that Left has 35). Is the President bound to follow the precedents set by her predecessors and invite the NDA, knowing fully well that opposition to it outnumbers its supporters? The Left may not be willing to give a letter of support to the Congress, though its abstention during the confidence vote could signal its support.

Let us understand the sequence of events in 1998 as evident from my article here. First, President K.R.Narayanan invited Vajpayee because as he said, BJP was the single largest party, and he headed the largest combination of pre-election allies. Since Vajpayee satisfied the first two conditions, the President did not find it necessary to know whether there is a post-election coalition which is a claimant. Secondly, he asked Vajpayee whether he would be able and willing to form the stable government which could secure the confidence of the Lok Sabha. He did not ask Vajpayee whether he could win the trust vote in the Lok Sabha. Thirdly, he sought letters of support from Vajpayee to sustain his claim that he had support of 252 members. Please note he did not want to be convinced that Vajpayee could secure the support of 272 members. On March 12, 1998 when he met the President, he had proof of support of only 237 Members of Lok Sabha; therefore, he did not stake his claim, but left it to the President's discretion. More important, the President took into consideration the Telugu Desam Party's stand - ascertained in a telephonic discussion with its leader N. Chandrababu Naidu - that the party would remain neutral during the vote of confidence. The President did not even seek a letter of support from Trinamul Congress. Once the AIADMK-led alliance's decision to extend support to Vajpayee became known, the President invited Vajpayee to form the Government. Vajpayee was still short of the magic figure of 272; still, he was able to convince the President that he would be able to secure the confidence of the House.

Narayanan issued a detailed communique each time there was a political crisis. On March 15, 1998,he explained how he was convinced of Vajpayee's capacity to form a stable Government. Thus he explained why he had to dissolve the Lok Sabha in 1999. Narayanan's successor, President Kalam did not follow this tradition, while prematurely dissolving Lok Sabha in February 2004. It is hoped that President Patil will revive the tradition of explaining her decisions during the process of appointing a new Prime Minister, after the election results.

UPDATE: With the certainty of Manmohan Singh returning as the PM, the President has been spared of this Constitutional dilemma.

EC pats itself on the successful completion of elections

The E.C. has generally received praise from the media as well as the political parties for its reasonable success in completing the 15th General Elections satisfactorily. Here, in this press release, the E.C. congratulates itself, by bringing to notice some of the highlights of this election. Contrary to what one might have expected, the full Commission has chosen to express its gratitude to the former CEC, N.Gopalaswami, for having guided the elections till the first phase was over. The highlight of this highlight is that the staff strength of the EC's secretariat in New Delhi is just 310! When you consider the huge scale of this election, it is indeed surprising. But is the Commission's "immense satisfaction" over its performance justified? With so many voters complaining about their non-inclusion in the rolls, clearly there is a case for streamlining enrolment, so that we are able to at least enrol all who want to vote.