Just because institutions have power to do something, should they do it?

The real problem is not that govts behave badly. It's that they can behave badly. There are virtually no constitutional restrictions on their conduct

If you ask any Indian government why they use the governors to go after state governments or why they start sniping at the judiciary, the reply will be “because we can.” But just because you can, must you do it?

This question has been asked of Indian governments since 1951 when the then government amended the Constitution — the first amendment — because it could. That amendment placed “reasonable” restrictions on the freedom of speech. Reasonable was not defined.

Thus, that government did what it did because it could. Subsequently many governments have done whatever they have done because they can.

So the real problem is not that they behave badly. It’s that they can behave badly. There are virtually no constitutional restrictions on their conduct.

That’s why Indira Gandhi chose to place the president, the vice-president and the prime minister above the law even for criminal conduct. And that’s also why the government that succeeded hers amended the Constitution to say that the right to property is not a fundamental right, never mind the ‘basic structure’ doctrine.

There are several examples of such “because we can” behaviour and the current government is being true to form. It’s governors in non-BJP ruled states are harassing the state governments and it is itself seeking to abridge the powers of the Supreme Court to appoint judges.

But “because it can” is only one reason. The other aspect is whether it is right in doing whatever it is doing. And this is where the problem lies because sometimes it is and sometimes it is not.

The governor question, as posed by Arif Mohammed Khan, the governor of Kerala, and Jagdeep Dhankar when he was governor of West Bengal, is if upholding the constitution amounts to undue interference by them.

These are like technical faults in a sport. The umpire can let it pass or not. The governors in the non-BJP states are choosing not to.

This is because embedded in this question is another question: can political parties be entrusted to always act in accordance with the Constitution? Even the slightest doubt is enough to justify not only the existence of the governor’s post and the powers vested in it but also his or her actions.

The problem, of course, is that governors can be erratic too. We just saw an example of this in Tamil Nadu where the governor had to issue a ‘clarification’ to what he said about the name of the state. His actions have embarrassed both the BJP and the central government.

The judges question is much easier to understand, if not answer: should they appoint themselves? After all, this happens only in India, nowhere else and this practice was introduced by the judiciary itself because it could.

At the very heart of the matter lies an age-old question which is never articulated: how is the system to accommodate the political inclinations of judges. Should those who do not approve of the incumbent government’s ideological orientation be appointed to the higher judiciary?

In India we have sought to copy the British model whereas the correct answer is to be found in the US. There the legislature approves nominations by the government, not the judiciary. This means that neither side is right in the current friction between the judiciary and the government. Both are wrong.

It’s unlikely that these — governor and judiciary — problems will be resolved as long a party enjoys a large majority in the parliament. It is no coincidence that both crop up only then.

Remember: The basic structure doctrine was enunciated by the Supreme Court when the Congress had 352 seats in the Lok Sabha.