Ten days before general election results are declared and the UPA government’s term ends, its attempt to push two appointments, overriding political opposition, raises questions of duty and propriety. The appointments — a sitting judge to head a judicial inquiry into the ‘Snoopgate’ allegations against Narendra Modi and the next Army chief’s selection — have been intensely opposed by the BJP. On December 26 last, the Union Cabinet had cleared a judicial commission into ‘Snoopgate’. But the tearing hurry now, after months of inaction, betrays opportunism rather than serving the ends of justice. Kapil Sibal’s newfound zeal has allowed the BJP to allege victimisation, and question the “moral and constitutional” authority of a government, on its last legs, to pursue such a course of action.
But a government, even at its fag end, does not lose its mandate to govern under the Constitution of India. The Election Commission’s Model Code of Conduct merely forbids the government from making “any ad-hoc appointments in Government, Public Undertakings, etc” to influence voters in its favour. It is another matter that the Election Commission(EC) and the President of India have used their discretionary powers under the Constitution to reject or return many recommendations of this incumbent government even when the influence on voters is unclear. The EC’s decision to reject the gas price hike proposed by the petroleum ministry from April 1 and the President returning unsigned files relating to appointments to central universities and IITs are cases in point. Unlike Bangladesh, where the Constitution mandates a caretaker government overseeing the election and transfer of power to a new dispensation, in India the Union government’s writ runs supreme for all decisions taken in good faith.
But the UPA government’s troubles are entirely of its own doing. Arbitrary and inconsistent actions when convenient have blurred the lines on normative decision-making. The Lokpal selection faltered after two appointees on the search committee refused to join after finding the notified rules inimical to a transparent selection process. The search committee was constrained to interview only those Lokpal candidates proposed by the Department of Personnel and Training(DoPT). Their refusal forced the Centre to abandon the hurried search process. But the Centre’s submissions in the Supreme Court agreeing to rework the rules, thereby scrapping the DoPT’s inordinate powers, is hardly a concession. The change of heart appears a cynical attempt to deny the incoming government the same leeway in Lokpal selection that the government unabashedly attempted to enjoy before being rebuffed.
Such missteps have emboldened the BJP to question other last-gasp decisions. The BJP’s election pitch —that the Manmohan Singh government is unfit to rule — passes muster only as electoral rhetoric. However, challenging an elected government’s prerogative to take executive action, before its term ends, is plain overreach. Traditionally, Army chief-designates are named two months before the incumbent’s retirement. General Bikram Singh retires on July 31. Theoretically, his successor must be named on May 31. But General Singh was named three months before his predecessor VK Singh retired at the height of his date of birth controversy. The BJP has virtually presumed that it is coming to power and will have ample time to appoint the next Army chief. But the possibility of a hung Parliament and a delay in government formation cannot be ruled out. With the two-month tradition having been discarded once before, the UPA can claim it is flouting no laws in the interests of the country, with a view to possible political instability.