Caretakers’ mandate

The concept of a caretaker government to run the country during the elections is now firmly rooted in the constitutional practice of the parliamentary system.

If it is a constitutional imperative in Pakistan, in India it has evolved over the years to become a recognised constitutional convention enforceable by the election commission at the centre as well as in the states. It matters little that the designation is not used though the settled constraints of caretaker regimes apply in India as they do elsewhere.

India has had caretaker governments at the centre, in all but name, since 1991. The 1989 general election witnessed the first transfer of power from one party to another at the centre when the Congress, led by Rajiv Gandhi, lost to the National Front led by V.P. Singh. It was, however, in the 1991 general election that the curbs appropriate to a caretaker regime were first enforced by the election commission.

The election commission went so far as to forbid the government from presenting a budget proper in the Lok Sabha, India’s lower house of parliament. The commission contended that budgets offer sops to the people and a government which is going to the polls should enjoy no such advantage.

Accordingly, the Lok Sabha passed a vote in order to keep the wheels of administration running till a new government could present a budget after the elections. Since then, every government has been submitted to the same curbs during the general elections in 1996, 1998, 1999, 2004 and 2009.

Two factors were responsible for the change. In 1990 a highly assertive former cabinet secretary, T.N. Seshan, was appointed to the post of chief election commissioner. He invoked the age-old toothless Model Code of Conduct for the Guidance of the Political Parties and Candidates even though the code had no statutory sanction.

The other factor was that the era of one-party dominance was over and political polarisation between the two main rival groups had become the norm. One was led by the Congress; the other by the Bharatiya Janata Party. In the last two decades, the power of the Indian election commission has grown. It enforces Part VII of the Model Code concerning the party in power to install, at the centre and in the states in all but name, caretaker governments.

The raison d’être of a caretaker government is two-fold. One is to prevent the abuse of power by the government to further its electoral prospects. The other is to prevent an interim regime from taking measures which pre-empt those which in all propriety are ones for the newly elected government to take after it has received a mandate from the people.

Like the elephant, it is hard to define the elements that constitute a caretaker government and the curbs that bind the interim set-up; but it is easy to recognise them.

The concept was never unknown in Britain and has acquired acceptance there. In his classic Cabinet Government, Sir Ivor Jennings wrote patronisingly over half a century ago: “Since this book is used in other Commonwealth countries, it should be explained that it is not British practice to appoint a ‘caretaker government’ for the duration of a general election. It was done in 1945 because the wartime coalition had broken up.”

Churchill’s government, from which its Labour member parted company was known as a “caretaker government”. In his erudite work Constitutional Practice Prof Rodney Brazier urges “the use of caretaker government” pending the transition. He cites two other cases, in 1923 and 1979, when the government in power acted as a “caretaker government” to preside over routine matters of government. That sums up the main limitation that properly governs a caretaker regime.

On Ivor Jennings, the reader will permit a digression. As this writer established in Dawn of Nov 2, 2008 on the basis of archival material, Jennings was guilty of “falsification and perfidy to his client Pakistan”.

The president of the constituent assembly Maulvi Tamizuddin Khan had challenged the governor-general Ghulam Mohammad’s dissolution of the assembly in the Sindh High Court.

Ghulam Mohammad offered Jennings a retainer which was over seven times the salary which the chief justice of Pakistan, Mohammad Munir, drew in a year. Jennings argued that the queen, through the governor-general, had even greater power in independent Pakistan than she had in Britain. He would not have dared to urge in Britain the arguments he advanced in Pakistan.

They were music to Ghulam Mohammad’s ears and the chief justice’s. Jennings also revealed to the British high commissioner in Colombo the opinion he had tendered to his clients in Karachi.

As abuse of power for electoral ends became rampant in India, Jayaprakash Narayan appointed a committee on electoral reforms. The committee’s report of Feb 9, 1975, provides a fairly good indication of the norms that bind a caretaker government.

It urged a convention “backed by legal sanction” which would impose certain curbs; namely, no initiation of “new policies” or “new projects”; no grants or allowances, loans or salary increases; nor official functions attended by ministers and officials.

There should, besides, be a ban on the use of government vehicles or aircraft, “advertisement of government’s achievements”, transfers of officials or police personnel. Very many of them found their way in part VII of the Model Code on the ‘Party in Power’. It forbids laying of foundation stones, ad hoc appointments in the services, etc.

The Indian election commission appoints its observers in crucial constituencies to report on violations of the Model Code as well as violations of the prescribed limits on election expenses by candidates and political parties.

The writer is an author and a lawyer.