August 13, 2020
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Careless Caretakers

The BJP’s caretaker government walks a fine line between doing its duty and overdoing it

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Careless Caretakers
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They’re usually quick to pounce on any "transgression" by their political opponents. But now it’s the BJP-led government, "the upholder of democratic norms", that has brazenly trampled convention. By transfering 21 senior bureaucrats—including the home secretary, whose role in ensuring an impartial poll is vital—within 24 hours, the ‘caretaker’ Vajpayee government is only taking a leaf out of Laloo Prasad Yadav’s and Kalyan Singh’s books. It’s worse, actually, because at least the two state governments have the mandate of their respective state assemblies. But that has not bothered leading lights of the coalition such as George Fernandes, who have demanded that Laloo’s pre-poll transfers be monitored. It begs the question: who will monitor the monitors?

Despite the government’s claims that last week’s transfers were routine, the grapevine is buzzing that B.P. Singh was shunted out because he failed to assure the Election Commission that the home ministry could provide logistical support for an election in June, something the BJP desperately wanted. "It wanted to cash in on the sympathy factor for the way it was brought down. But Gill dashed those hopes," says an Election Commission official. In the process, it has thrown open a debate on the extent of the powers of a defeated government and what constitutes stepping out of line.

"This is a period of governance without accountability. (This government) is a special species as it has no mandate. It cannot do anything that will invite protests from the Opposition and needs parliamentary approval," says constitutional expert Rajeev Dhawan. But other legal experts stoutly maintain that lame-duck regimes cannot live in limbo. They can take decisions and carry on with effective governance—with discretion. "Governance cannot be stopped; it is necessary to look into the circumstances behind decisions," says P.N. Lekhi, Supreme Court lawyer.

The term ‘caretaker’ entered the political lexicon in 1979 during Charan Singh’s regime, which enjoyed a longer term without Parliament’s confidence (3 months) than with it (22 days). Constitutionally, caretaker governments do not exist. But they have been accorded a legitimacy of sorts after the country went through two provisional arrangements besides the present one, most recently in 1997-98, when I.K. Gujral headed a caretaker government for nearly three months.

Just the other day, Chief Election Commissioner M.S. Gill appealed for restraint in actions and decisions. The appeal was aimed particularly at the Centre and state governments—where assembly polls are due shortly and are likely to be clubbed with the impending Lok Sabha elections. "The bureaucratic shuffle is the Vajpayee regime’s answer to the poll panel chief. It seriously offends constitutional propriety and democratic conventions," adds Dhawan.

Clear indications of the BJP’s combative mood were provided on May 1. Cabinet secretary Prabhat Kumar’s now-no-longer confidential order to all ministries clarified that the government enjoys "full powers". The drum roll was echoed by i&b minister Pramod Mahajan: "It is the government’s prerogative to change officers and we did it. It can be the subject of critical comments in the media but for us it was routine. If the need arises, we will go in for more transfers." The party’s spin doctors defend the move with vigour. "Hadn’t the Gujral government, under identical circumstances, also appointed ambassadors and governors?" is the refrain.

But the Gujral dispensation sent out no circulars or missives to ministries. Kumar’s confidential order, in contrast, has an important rider. "It is clarified that the present government is not a caretaker government under our Constitution and it has full powers...to be used with discretion... This implies that even policy decisions could be taken if they are absolutely necessary." With five more months left before the elections, it seems certain that more policy decisions to shore up the BJP’s image are in the offing. In a deft move, Shakti Sinha, the prime minister’s personal secretary, was posted to the UK High Commission just a week back.

Supreme Court lawyer K. Madhavan has a different take. "Elections have not been statutorily notified. It was a routine administrative exercise; there’s no cause for friction between the home secretary and the government." It would be a different matter, he reckons, if the government conducted more nuclear tests, went to war with Pakistan or decided to disinvest all public sector undertaking shares.

True, the model code of conduct and restrictions on the transfer of officials come into effect only once the poll timetable is announced. The basic question remains one of propriety and democratic convention rather than of whether the model code of conduct is operative or not, especially after India enters election mode.

This lull before the announcement of the poll schedule has come in handy for several state governments which have embarked on a transfer spree moving officials with a "ruling party friendly" image to crucial slots. Bihar, Uttar Pradesh, Madhya Pradesh and West Bengal are among the states where this has taken place—if there’s a difference in the modi operandi, it’s one of degree only.

"It is not as if the present regime cannot shift officials, but it must be for compelling administrative reasons, for obvious and transparent factors," says former cec T.N. Seshan. "The acid test is whether the government’s action is coloured by aiming at enhancing or even appearing to enhance its own electoral performance." Seshan adds that it’s for Rashtrapati Bhavan to apply the test now; when poll dates are announced, the burden of testing shifts to the Election Commission.

"The fact is that there is no 12th Lok Sabha but there is a government. There are many ifs and buts in the running of a government and going by precedent, this government cannot take policy decisions," says a secretary.

The Opposition has chosen to spotlight the transfer of B.P. Singh and his replacement with a man it terms "a known sympathiser of the Sangh parivar" for the key post. The CPI(M) said the move was motivated by "obvious political considerations". The Rashtriya Janata Dal also slammed the caretaker regime for the two quick rounds of transfers. Party spokesman M.A.A. Fatmi said: "Rabri Devi has a full-fledged government when she ordered transfers in the state, but the Vajpayee government is simply holding fort till the elections. It is a conspiracy for electoral gains."

But it was the Congress which fired the first salvo condemning Vajpayee’s use of the electronic media to "address the nation" for partisan ends. In a memorandum submitted to the President, a high-powered delegation expressed its displeasure that the caretaker PM made a ‘political speech’ rubbishing the Opposition.

But the BJP is untouched by the censure, behaving with an aggression that belies the changes of April 17. J.P. Mathur, the party’s senior vice-president, says: "We have the moral right to function as we did before the confidence vote. After all, we lost only by one vote. It may have been different if we lost by 50 votes."

Not at all, says Seshan. "A transfer of four to five officers is certainly a routine administrative exercise, but to transfer 21 seems to stretch the logic. Legally, the government may be right. Not morally."

While opinion on whether the Vajpayee government can "perform" varies, the general legal perception is that a caretaker regime cannot take policy decisions. Having lost the support of the legislature, the government should avoid policy decisions and acts which could limit its successor’s choices. But international obligations loom ahead, and high on the list are the ratification of the World Trade Organisation and the signing of the Compre-hensive Test Ban Treaty, with a September 30 deadline. With a properly constituted government likely to take office sometime in mid-October, the present government may carry on dialogues, but let its successor take the hard decisions.

"Even if such time-barred obligations have to be fulfilled, there can be no ordinance power. The international community has to be dutifully told to defer the issue," says Dhawan. If a decision is absolutely imperative in the interests of the nation, many feel that opposition leaders need to be taken into confidence to work out a consensus.

With the Election Commission gearing up to blow the whistle once the poll schedule is announced, the Vajpayee regime might find it difficult to announce policies that will beckon the electorate. It’s not just Big Brother, but the whole nation who will be watching their next moves.

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