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Who is the guilty party in Uttar Pradesh?

Vidya Subrahmaniam

The February 14 judgment of the apex court ought to have been treated as a call for sober introspection. Instead it has become a tool for settling scores. It has revived the chorus for Mulayam Singh's dismissal — by parties who have all played the defection game.

UTTAR PRADESH is in turmoil once again — this time the trigger is the retrospective disqualification by the Supreme Court of 13 (and by implication another 24) MLAs who left the Bahujan Samaj Party to help Mulayam Singh form a government in August 2003. The disqualification by a Constitution Bench headed by Chief Justice K.G. Balakrishnan has expectedly revived the chorus for the Chief Minister's dismissal.

The claim being made by Mr. Mulayam Singh's opponents is that the retrospective disqualification renders his government unconstitutional; indeed that he ought to have already resigned on moral grounds. How sustainable are these demands? Of the parties gunning for the Chief Minister how many have a record of no defection? How many have never bought legislative support to tide over a political crisis, to win a crucial vote of confidence? Can even one of the parties claim the governments it ran were all unimpeachably above board? None.

But first the judgment. On the surface, the judgment in Civil Appeal 765 of 2007 is about a group of ambitious men who crossed over from one party to another, defying an existing law. In truth, it is a commentary on the pitiable state of the Indian politico-legal system; it is an indictment of every one of our institutions — the party system, the Raj Bhavan, the office of Speaker, and the judiciary itself.

In the story that unfolds in the pages of the judgment, the Governor calls upon a political leader without the required numbers to form a government. The Speaker wilfully allows the defection of some MLAs who self-evidently do not constitute a third of their party's strength — a fundamental requirement to avoid disqualification under the earlier provisions of the Tenth Schedule. He goes on to legitimise a split that never took place. The High Court takes three full years to decide on the legality of the Speaker's order (the delay is sketched in painstaking detail by the judgment). By the time the appeal against the High Court verdict (two to one in favour of disqualification) reaches the apex court's door it is almost too late. So much so, the Supreme Court notes with concern that any delay on its own part could render the exercise infructuous — as, in fact, happened earlier. That was in the year 1997. The Chief Minister was Kalyan Singh. The allegation was that he had formed a government of defectors. The case wound its way to a previous Constitution Bench only to be eventually disposed of. The reason: the term of the Assembly ended even as the Court was considering BSP leader Mayawati's petition against the defectors.

This time the verdict has come in the nick of time. In another month, Uttar Pradesh will be in election mode with political parties in cutthroat competition. So a judgment that ought to be treated as a call for sober introspection becomes a tool for settling scores. It gets reduced to a single issue: whether Mr. Mulayam Singh should be dismissed for his alleged sin of forming an illegal government. The protestors — the Congress, the Bharatiya Janata Party, the BSP, and the Rashtriya Lok Dal — have all played the defection game before. The Congress, the cheerleader of the dismissal project, pioneered the Aya Ram, Gaya Ram culture; in power, it dismissed more governments than anyone could keep track of, the misadventures earning it judicial and presidential disapproval.

Forget long ago history. Look at who aided and abetted the formation of the Mulayam Singh Government of 2003. Mr. Mulayam Singh started out without even a semblance of a majority thanks to an obliging Governor. Yet nine days later he had won the vote of confidence with 44 votes to spare. The 37 defectors helped him but others did too. A PTI report of the time tells us that on September 8, 2003, Mr. Mulayam Singh won the vote of confidence "amid thumping of desks by the ruling coalition's partners," among them the Congress, the RLD, the Janata Dal (United), and the Samata Party. Of 398 members present and voting, 244 voted in his favour and 154 against. Take out the 37, now retrospectively disqualified, and the government of 2003 still survives, if with a smaller majority. Mr. Mulayam Singh's Government becomes retrospectively legitimate — by the actions of the Congress and the RLD who played midwife at the time of its birth, who supported it till two months ago, but who now call it unconstitutional, insisting that it be punished today for a wrong allegedly done then. A government that is duly constituted and administered the oath of office cannot become illegal by a later finding. Yet even this argument does not dislodge the Mulayam Singh Government of 2003, which had a 37-plus majority at the relevant time. Significantly, in the last one year, the Chief Minister has twice won a vote of confidence — on February 28, 2006, and on January 25, 2007.

BJP's role

Consider now the role of the BJP. Who was the Speaker who hastily recognised the 13 BSP MLAs now disqualified? Who legitimised the split in the BSP — now held by the apex court to have never been established? Who converted Mr. Mulayam Singh's impossible dream into reality? Who made his government possible? The BJP's Kesri Nath Tripathi. The shocking saga, sketched out in some detail in the judgment, goes thus: On August 25, 2003, the State Cabinet headed by Ms. Mayawati unanimously recommends the dissolution of the Assembly. On August 26, she submits her resignation to the Governor. On August 27, 13 of the BSP's 109 MLAs meet the Governor accompanied by Samajwadi Party leader Amar Singh. They urge the Governor to invite Mr. Mulayam Singh to form a Government on the basis of identically worded letters of support. The letters make no claim that the BSP has split, not even that the 13 are among a larger group of legislators who together constitute a third of the strength of the parent party. The no-frills letters makes a single point: we, the undersigned, belong to the BSP but we support the Leader of the Opposition.

The Governor disregards the recommendation for the dissolution of the Assembly but invites Mr. Mulayam Singh to form a government. Mr. Mulayam Singh is sworn in Chief Minister on August 29. On September 4, the leader of the BSP's legislature party, Swami Prasad Maurya, files a petition before the Speaker seeking disqualification of the 13 party MLAs under the Tenth Schedule. On September 5, Mr. Maurya files a caveat seeking immediate hearing on his petition. On September 6, a group of 37 BSP MLAs, including the first batch of 13, address two applications to the Speaker. The first claims recognition for the group of 37 on three grounds. The parent BSP has split; together the group of 37 constitutes a third of the BSP's legislative strength of 109; and all 37 have now formed themselves into a new party, the Loktantrik Bahujan Dal (LBD). The second application announces that the LBD had merged with the Samajwadi Party.

Called upon to disqualify 13 BSP MLAs, who by any calculation do not add up to a third of their party's strength of 109, the Speaker turns his attention to two other applications — filed by the group of 37. It is patently obvious that the 37 do not form a single bloc, that a gap of 10 days separates the first (13) and second defections (24); that their claim of a split in the BSP is not even remotely established.

Yet Mr. Tripathi concedes every one of the group's demands. In one go, he legitimises the split in the BSP, he accepts that the 37 form a third of their party's strength, he recognises the LBD, and also its merger with the SP. Unable to secure the Speaker's attention, Mr. Maurya's petitition reaches the Lucknow Bench of the Allahabad High Court, where, to quote the February 14 judgment, it has a "chequered career," pushed from one day to another for one reason or another. As the judgment notes, " ... .we must express our unhappiness at the tardy manner in which a matter of some consequence and constitutional propriety was dealt with by the High Court... "

A word about Mr. Tripathi, also Speaker in 1997, the year Kalyan Singh broke the Congress and the BSP to sustain himself in a Government that took on board 93 Ministers, the bulk of them defectors rewarded for services rendered. The defectors included 12 MLAs from the BSP, whose strength at that time was 67. A second batch of seven BSP MLAs joined the first. Twelve of 67, or even 19 of 67, was way less than one-third. The first group of 12 had also defied a party whip to vote against Mr. Kalyan Singh. In other words, there was no escape from disqualification for the defecting 12. But Mr. Tripathi had other plans. In an astounding 1998 ruling, he maintained that on October 21, 1997, the day Mr. Kalyan Singh won the confidence vote, 26 BSP MLAs had been ready to defect, and indeed had formed a separate party, the Jantantrik Bahujan Samaj Party. But the JBSP itself split with seven MLAs returning to the BSP. Thus there was a "split within the split" which made for a happy ending.

Today the BJP is all righteous anger about the unconstitutional manner of the Mulayam Singh Government's appointment. It should ask itself who legitimised that government, and also a previous government propped up by defectors, among them a dozen or so who had no legal leg to stand on. For its part, the Congress must surely know how the Narasimha Rao Government sustained itself in government. In retrospect, was that government legal? Or should the fact that the Rao regime bought support from Jharkhand Mukti Morcha MPs be retrospectively held against it? Ajit Singh was another MP involved in that case. Does he have some explaining to do?

Those clamouring for Mr. Mulayam Singh's dismissal will do well to journey back to October 1997 — yes, to the same tumultuous days when Mr. Kalyan Singh assembled his jumbo ministry and won the vote of confidence. Outraged by his audacity, the United Front Government at the Centre, egged on by the Congress, pushed for his dismissal, sending a proclamation under Article 356 to K.R. Narayanan.

The learned man that President Narayanan was, he knew his hands were tied by the Bommai judgment. Hence his unprecedented decision to return the Cabinet's recommendation. The Congress ought to familiarise itself with this precedent.

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