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WHO HAS NOT APPLIED MIND …?

The elections of Karnataka state Assembly are over.

The election result produced a hung assembly

BJP got 104 Seats,

Indian Nehruvian Congress got 78 seats,

JDS+ got 38 seats

And

Others got 2 seats

Somehow it appears that there is a flaw somewhere in the process of calling for proving the majority.

Who are the parties?

(1) Governor of Karnataka

(2) Nehruvian Congress and JDS

(3) BJP

(4) Supreme Court Judges

SC at flaw

(1) Governor of Karnataka what was his role?

(1.1) to invite the leader of the First Single largest party, to take an oath as CM,

(1.2) to ask the CM to appoint the provisional temporary speaker from the elected members to swear in,   

(1.3) to ask the CM to prove his majority on the floor of the house

(1.4) the CM should prove the majority support within 15 days on the floor of the house, not elsewhere,

(1.5) the CM to form the government after proving the majority support on the floor

Is there any flaw at the end of the Governor?

No. There is no flaw in inviting the leader of the First Single largest party to take an oath as CM, because it was as per the guide line prescribed by the Sarkaria Commission in its report and it has been approved by the SC.   

Was there any flaw in the appointment of Mr. Bopiah as provisional speaker of the house?

No. There was no flaw in his appointment because he was the senior most under the criteria of length of service in a cadre. Allegation against him of being bias was set aside by the SC long back in some other case. He had also worked as provisional speaker previously too.

Is there any flaw in asking the CM to prove the majority on the floor of the house?

No. There was no any flaw in asking him to prove the majority on the floor of the house. This was in accordance to the Supreme Court ruling in some other case that the majority has to be proved on the floor of the house, not elsewhere.

Is there any flaw in asking to prove the said majority support within 15 days.

No. There was no flaw in giving a maximum period up to 15 days for the job entrusted to the leader of the First largest single party. 15 days period is the legal period.

Why 15 days period is termed as the legal period?

Something related with multiple subjects and objects to be dealt with, a time limit of minimum 15 days has to be given, to avoid injustice to person/persons/party/parties. If the time period has the relation with a single person with no gathering, searching the matter related document/documents i.e. documental studies, then 72 hours’ time limit is justified. Here in our subject matter, this was not the case. Here it is a policy matter where the whole party’s members have some SAY. These SAYs are to be compiled and needed to arrive to several decisions related with alliance including the alliance to me made or not, through discussion within the party and then through consensus an amicable solution with or without some terms and condition. The leader of a party cannot take decisions at his whims in a democratic country. Hence the 15 days’ time limit given was a well justified limit.

Therefore the decisions of the Governor was foul-less and flawless.

The further details on this justified time limit we would see later.

(2) Nehruvian Congress and JDS

These are the petitioners. We do not know whether Nehruvian Congress is the First Part of the petitioner or the Second Part. Similarly about the JDS. Irrespective of the First Part or Second Part, the BJP lawyer should have asked to clarify. Leave this aside, it is the right of any person/organization to submit a petition. It is up to the discretion of the SC to get convinced or not. We would examine this point further  under the actions of the SC.

(3) BJP, is off course the opposite party. Action of BJP and SC we would discuss together.

(4) Supreme Court:

Who has issued instructions?

Governor has issued the instructions.

If the governor’s instructions are challenged then the Governor becomes the defendant. BJP cannot become either an opposite party or a defending party. But here, BJP being the first largest single party, its interest is affected if the SC does not hear BJP.

As for the Governor, the Governor cannot be called before any court. When this is the position of the Governor, then, it implies that the Governor must have an unchallengeable power, to take the decision. But no authority is allowed to take arbitrary decision in a democratic country. The decision should be taken with discretion.  Discretion means reasonable and justifiable.

The task before SC was to decide whether the instructions issued by the Governor contained any flaw and to rule on:

(1) To entertain the petition or not, when the Governor has discretionary power.

(2) If yes, then whether any instruction of the Governor was discretionary or arbitrary? If the SC finds prima-facie in the petition that any instruction of the Governor contains flaw, then the SC can entertain the petition.

The SC has ruled that the 4th instruction of the Governor was arbitrary.  That is the time limit given for proving the majority within 15 days contains a flaw.

On this point, the SC has a flaw in its order.  SC changed the time limit from 15 days to two days.

The petitioner parties, viz. the  Nehruvian Congress and the  JDS or vice versa, can come with dirty hand, is understandable, through their record of history. But the legal matters are heard, point to point with its relevance.

e.g. Indira Gandhi had spoken fourteen lies on oath, before the Allahabad HC, when her election was challenged by Rajnarain. But at that time, the HC had not ruled, that all of her, rest of the statements were also false. Similarly here, if the petitioners have come with the dirty hands, then this was required to be proved in the court. If the Opposite party proves this, then the petitioners are liable to be punished.

How and why the matter was so urgent that it should be heard at mid night?

It is said that the appointment of Protem speaker, by the leader of the BJP, can play a foul game. But SC can say that this is hypothetical ground. Court cannot give its verdict on hypothetical assumption. Hence SC should have rejected the petition and could have asked the petitioners to come after the appointment of the Protem Speaker.

The pray for the reduction of time limit for the reason of horse trading.

This point is also hypothetical. Horse Trading applies to every party, and if the factor of horse trading is to be considered, then it is to be applied to all.

Otherwise also, the point of preventing Horse Trading cannot be entertained. Because the petitioner One and the petitioner 2 gets full liberty for Horse Trading and that to for indefinite period. They can do the horse trading during the forming of government and after word also while negotiating on terms and conditions of common minimum program.

The point of petitioner coming before the Court with dirty hands lies here:

To have an alliance among two or multiple parties is a policy matter of each party.

To have an alliance, there needs to have terms and conditions which are supposed to be in concurrence with the party principles. Whether these terms and conditions are in concurrence with party principles or not, there needs an expert opinion and the members of the party must have a SAY to it. All these things can be decided only by the General body meeting of the party. Even the Central Working Committee is not authorized to change the policy of the party without the concurrence of the general body.

What should be or what is the procedure to decide such “policy issue” in a democratic set up?

The party president can call for an emergency general body meeting. But political parties are having members in lakhs. Therefore there are state committees. State committees further dependent on district, tehsil and city committees. They have to give suggestions and to elect delegates for the general conference. These delegates will submit the SAYs of members in the general conference. Then the central working committee would compile the SAYs and take the decision as per the delegated power under the constitution of the party. If any member of any Committee inclusive of MLA, if does not agree with the decision/s of the central working committee, he/she has the right to leave the party if he is in minority. No question arises of he being in majority because in that case the proposal gets rejected.

If the alliance has been done before the declaration of the Assembly elections, all these procedure can be followed. And a member against any terms and conditions of alliance or even against the alliance itself, would not file his candidature in assembly election and even he could resign from the party.

If the alliance is proposed after the poll, how to follow the line of democratic spirit to have the alliance?      

It is mandatory to follow the aforesaid procedure to maintain the spirit of the democracy. On the plea of an urgency no party can overlook the basic characteristic of democracy. Further there is no urgency because if the matter is delayed even beyond 15 days, there was no scope of breakdown of the constitution.

Generally for calling any meeting, a notice of 15 days in advance is required for committee of any level with an agenda. In case of an urgency and a known single agenda, a notice of 72 hours is OK at lower level. But when the higher level committee is dependent on the suggestions of the lower level committees, inclusive of electing and sending delegates to the general body meeting at the Head Quarter, 72 days’ notice is not feasible. That is why 15 days’ time period was ok.

Democratic spirit is the transparency and accommodating every body’s SAY so that it can reflects the opinion of general members to the central working committee. Now, in case of post poll alliance even if all the above procedure is followed and accordingly the alliance to a party is approved by a party, an elected member of a party may not agree to the alliance. It is the liberty and the right of that elected member/s to disagree with the post-poll alliance.

Now it is matter of controversy, that in such a case the elected member/s should resign from the MLA-ship or not?

If he/she resigns from the party is understandable. The party can dismiss the member that can also be understandable.

But whether the MLA is the representative of the people of the constituency or the representative of the party? This point is controversial for some people.

Whether the party is superimposing on MLA or people of the constituency are superimposing on MLA?

In democracy the people are the supreme. Thereby in democracy, the MLA should act according to the desire of the people of the constituency.

If while canvassing the contestant of a party has not made mention about a could be alliance to a party, but on the contrary the contestant had abused and derogated the opponent party/parties and its contestant, in that case if that contestant wins the elections the contestant becomes the MLA, and that MLA is not supposed to resign from MLA-ship, because he has not lost the faith of his people.

It is on record that SC has ruled that the people are supreme even above the constitution in democratic countries, then a party cannot terminate any MLA on the ground of the MLA has lost the faith of the party. People are supreme not the party, not the SC, not the house and not the constitution. The burden of proof that the MLA has lost the faith  of the people, lies with party. If any law is not in concurrence with the aforesaid burden of proof, the law is null and void.  

The Supreme Court has not considered the characteristic of the democracy. The party leaders have no arbitrary power for having an alliance. The SC appears to have been taken for granted that the central working or its president enjoys the arbitrary power.  They cannot have such arbitrary power in democracy.

Further the SC has not cared to see or the SC appears to have been overlooked the mandatory procedure to be followed by the petitioner parties to have an alliance reflecting the approval of general body. This is the big flaw in the decision of SC.

The SC has not examined and it has overlooked the mandatory characteristic of parties in a democratic country in passing the order of curtailed time limit of to 72 hours.

We can conclude that it appears;

SC has not taken “ an alliance with another party” is a policy related matter.

SC over ruled that a party should maintain transparency in a democratic country,

SC has approved that non-democratic parties are allowed to function in politics of a democratic country.

SC found on hypothetical ground that there could be horse trading at the end of opposite party (BJP) without examining any past records of it.

SC found no scope for horse trading between two petitioning parties even though they have unlimited scope for indefinite period.

or the SC has not applied mind

As for the BJP, we do not know as to why it has not represented its own case in view of the democratic principles of transparency and mandatory procedures to compile the members’ voice.

If the party is already having its pre-planned strategy of dealing with the matter, it is ok.

Amit Shah is considered to be the modern Chanakya who followed the philosophy of Lord Krishna who had said “ShaTham Prati ShaThyam Samacharet” शठं प्रति शाठ्यम्‌ समाचरेत्‌”.

Shirish M. Dave

 

 

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CAN THE JUDICIARY POKE ITS NOSE IN ADMINISTRATIVE MATTERS?

Either the Indian media hides the meaningful words of the remarks passed by the judiciary, with a view to give a negative message against the BJP lead government or the judiciary pokes its nose in administrative matters and passes uncalled remarks on the action taken by the government.

Yes. This has been observed twice on some major actions of the government.

Demonetization:

Somebody had filed a PIL before SC against the demonetization of Rs 500 and Rs 1000 currency notes, on the plea that the Government had not followed legally prescribed procedure and had not taken sufficient precautionary measures. The action taken by the government was in haste.

The media had given head line that SC had asked the Central Government to clarify its position. Besides this, the SC had also feared whether the government had examined the law and order situation likely to take place in the states, like agitations and riots, before taking the decision. It appears that the SC was of the opinion or the SC was to show its wisdom that the demonetization could be a reason that can burst riots or can deteriorate the law and order situation in the states.

Surprisingly such remarks were made after several weeks of demonetization. There was not a single news, showing occurrence of such incidents where the bad law and order situation was noticed on account of demonetization. People used to stand in queue calmly. Some stray incidents occurred due to mismanagement in distribution of new currency notes. But ultimately such cases did not result into riots. Despite of this, the well-read SC passed a remark as to what precautions and preventive measures were taken by the government against riots in the states.

It is possible that the antisocial elements had to suffer a lot due to the demonetization. As per the report of a government appointed committee of early nineties of the last century, the anti-social elements have the nexus with political parties and local police. The Nehruvian Congress cannot be ruled out from the nexus, what to talk about its allied parties? The allied parties have the same culture.

Who had made big noise against demonetization?

The people knew very well.

The remark of SC can have genuine fear of breaking up riots provided the nexus gangs plans out quickly. But the nexus had two fight out at three fronts.

First front was to replace their currency notes by new ones as much as possible and as soon as possible.

Second front was to create an atmosphere of large scale dissatisfaction and anarchy.

Third front was to plan out to create riots.

But to plan out for riots, the nexus had a fear that their activities were being monitored by the government intelligence. The nexus knew that they cannot take Narendra Modi for granted, on his intelligence performance. They feared a big risk in planning out for riots. However we cannot ruled out that the nexus had dropped the idea of planning of generating riots. That is why they incorporated the fear of bursting riots. And it is possible that for that reason, the SC might have put up the remark related with possible likely hood of riots.

However, so far SC is concern, it was supposed to put a cross question against the petitioners, that the matter of law and orders pertains to the state. Why have you not made the state governments as the opposite parties? Or the SC could have sent of its own the notice of the petition to the state governments. This is because the SC had entertained the point of “law and order” viz. Riot as a factor.

The second incident is of HC of U.P. on the litigation related to ban of illegally running slaughter houses.

illigal sloughter houses

The remarks of HC for the U.P. Government;

  • Renew the licenses which are pending for approval, by such and such date.

If the media has published this remark of the HC in its true literary sense and spirit, both the remarks of HC are uncalled.

The HC has instructed the U.P. Government to renew the licenses pending for renewal by such and such date. This remark is uncalled. Not only this, but the remark of HC gives a message that, the HC has examined the renewal applications of the owners of the slaughter houses and found them in order. Thereby HC has taken the status “Pending” of the applications, as a fraud on the part of the U.P. Government.

There is no information that HC has visited the places of slaughter houses whose applications for renewal of the license, were pending. There is no information as to a committee has submitted a report before the HC on the fulfillment of all the stipulated conditions required for the renewal of the license.

Is it not a matter of surprise as to how the HC can issue a blanket administrative instructions without going through the details in each case?

In case the finding of the HC is, that the previous government had kept the approval of the renewals of the licenses ready, but the succeeding  government (i.e. present government) has withhold the licenses. Then in such situation the HC can issue orders to take disciplinary actions against the officers concern. If HC is active even on passing a hypothetical remarks (discussed below) against the Government, it was more desirable to make the government active on preventive measures against the lethargy of officers, by proposing/ordering disciplinary actions.

The second remark of HC is most astonishing.

  • The government cannot enforce its idea upon the people to change their food habit, and ask the people to be vegetarian.

This remark is absolutely hypothetical. One cannot abuse anybody on hypothetical basis. The media has not furnished any details as to on what ground the HC has passed such remark. Such remark of the HC gives a message that the U.P. Government has the willful tendency to not renew the licenses of the slaughter houses though they have fulfilled all stipulated conditions for the renewal of the licenses.

It is possible that the petitioner might have narrated a point that the U.P. Government machinery wanted to please the new CM and thereby it has shown its reluctance in renewing the licenses.

This looks funny if the HC takes such points of petitioners for granted and pass abusive remark against the U.P. Government.

It is a well-known fact that the Indian Constitution is not against non-vegetarian food. A state Government is capable enough to understand this provisions of the Indian Constitution, at least through its learned officers how are presenting their case before HC.

Can we ruled out the possible influence of Media on the judiciary? Yes the media has a habit to emotionalize every matter. Thereby it diverts the discussion to suit to its agenda. By linking the action taken by Adityanath Yogi on illegal slaughter houses, as his approach towards to change the eating habit of people of India, the action can be sensationalize. But we expect the judiciary to apply its mind before spelling out some remarks.

Shirish Mohanlal Dave

Tag: Uncalled remark, SC, HC, Vegetarian food, slaughter houses, renewal of license, CM of U.P., Narendra Modi, Adityanath Yogi

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