Harking back to an interventionist era

The BJP has a long history of defending beleaguered Chief Ministers whose regimes were sought to be destabilised by Article 356. Now the Modi government is putting the clock back by imposing President’s rule on flimsy grounds in States run by rival parties

April 02, 2016 02:05 am | Updated 02:38 am IST

“Imposing President’s Rule in Uttarakhand flouts the principles laid down by the SC in the Bommai case.” Picture shows BJP MPs and MLAs from Uttarakhand marching from Vijay Chowk to Rashtrapati Bhavan in New Delhi to show that the Rawat government had lost majority in Uttarakhand. Photo: Sushil Kumar Verma

“Imposing President’s Rule in Uttarakhand flouts the principles laid down by the SC in the Bommai case.” Picture shows BJP MPs and MLAs from Uttarakhand marching from Vijay Chowk to Rashtrapati Bhavan in New Delhi to show that the Rawat government had lost majority in Uttarakhand. Photo: Sushil Kumar Verma

Each time a State is brought under President’s Rule without sufficient cause, the political class heaps infamy on itself. If the action is not outright illegal, it is likely to be an egregious sign of degenerating political morality. It is more likely than not that the ruling party that imposes Central rule was itself a victim of Article 356 of the Constitution in the past. And that it had shouted “murder of democracy” and marched to Rashtrapati Bhavan against what it believed was the subversion of federal principles.

The Bharatiya Janata Party (BJP) is transporting the country to the period prior to the 1990s when the Centre, mostly when the Congress was in power, used to invoke the Article cynically and whimsically to bring non-Congress regimes to heel. With its actions in Arunachal Pradesh and Uttarakhand, the BJP is perfecting the art of capitalising on dissidence within to push Chief Ministers from majority to minority status. At a time when Supreme Court judgments and amendments to the law appeared to have put an end to the mischief of Article 356 and inducements to defection, a new methodology has been created to bring out regime change without having to dissolve the Assembly or placing the relevant Presidential Proclamation before Parliament.

The Uttarakhand example

Much as the National Democratic Alliance government may defend the imposition of President’s Rule in Uttarakhand, it will be quite clear to impartial observers that that it is a partisan decision that flouts the principles laid down by the Supreme Court in the Bommai case of 1994. The justification for the resort to Article 356 of the Constitution in Uttarakhand revolves around three points: the supposed loss of majority of the Harish Rawat regime, as evidenced by the Finance Bill being passed by voice vote, disregarding demands for a division; the disqualification of nine members for alleged defection ahead of a confidence vote set for March 28; and a sting video purportedly showing Mr. Rawat offering inducement to some of the dissidents to return to his fold, thereby raising the possibility of horse-trading and unethical means.

When broken down point by point, it is quite apparent that either there was no ground for invoking Article 356 within the parameters laid down by the Supreme Court or that a situation warranting Central intervention had not yet arisen. The question whether the Appropriation Bill can be passed by voice vote is obviously barred from judicial scrutiny by Article 212 of the Constitution (which disallows courts from inquiring into internal matters of the legislature).

However, there may be substance to the point that the refusal to have a division raised a presumption of loss of majority. This was taken into account by the Governor, who asked the Chief Minister to prove his strength through a trust vote. The Governor’s response was reasonable and right because the manner in which a Bill is passed — by voice vote, show of hands or a division — is normally well within the province of the Speaker, and he cannot take the absence of division itself as proof of loss of majority. Therefore, the Governor’s decision to order a floor test directly addressed the original concern that the Rawat government may have lost its majority. (The BJP’s objection to the Appropriation Bill being passed by voice vote is somewhat ironical because its own party’s Chief Minister in Maharashtra, Devendra Fadnavis, won a confidence vote in the State Assembly in 2014 through a voice vote!)

Once a date for the trust vote was fixed, there is really no case to act on the suspicion that the motion may be carried by unfair means. The Proclamation of President’s Rule as a pre-emptive measure against a possibly manipulated vote is impermissible, according to the Supreme Court, which has made it clear that unless there is an extraordinary situation — such as all-pervasive violence — the Governor cannot come to a conclusion that there will be no free vote.

It is unlikely that the senior leadership of the ruling party does not know that allegations of horse-trading and other unethical means do not constitute sufficient grounds for invoking Article 356. “... [S]ituations which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the State according to the Constitution, would not merit the issuance of the Proclamation under the article,” the Court had said in Bommai. In 2005, the BJP leadership was at the forefront of the fight against the dissolution of the Bihar Assembly by the then Governor, Buta Singh, in what seemed to be a move to prevent Nitish Kumar from staking a claim to form the government. The election had thrown up a hung Assembly, and the State was under President’s Rule, with the House under suspended animation. At one stage, Mr. Kumar was apparently ready to stake a claim after gathering enough legislators in his support, but the Governor recommended dissolution of the Assembly because of what he called an alleged attempt to cobble together a majority through horse-trading and other foul means. The Supreme Court declared the dissolution unconstitutional and indicted the Governor for his hasty recommendation based on irrelevant and extraneous factors.

The K.R. Narayanan Minute

The BJP has a long history of defending beleaguered Chief Ministers whose regimes were sought to be destabilised in the name of loss of majority. It was at the forefront of the campaign against the ‘coup’ against N.T. Rama Rao in 1984 and the attempt by the Congress to forestall a Nitish Kumar regime in 2005. In terms of experience, it cannot afford to forget the Minute sent by President K.R. Narayanan urging a reconsideration of the recommendation to dismiss the Rabri Devi government in 1998. The President advised the Vajpayee government that a case of breakdown of constitutional machinery would not be made out unless the Centre had elicited explanations and sent out directives and warnings to the State government concerned. The Vajpayee government saw the wisdom in the argument and did not reiterate its advice. In 1999, the same President did sign a proclamation under Article 356 after a Dalit massacre in Bihar, but the government revoked Central rule within three weeks after realising that it may not receive the Rajya Sabha’s approval.

A lesson has been learnt. Since an Assembly cannot be dissolved prior to both Houses adopting resolutions approving President’s rule, one way of achieving some political objectives is to dismiss the State government first, and utilise the period in which the legislature is under suspended animation to install a new regime consisting of defectors backed by the Opposition. In this way, both the floor-test requirement and the bar on premature dissolution of the Assembly are utilised to the advantage of the ruling party at the Centre, instead of serving as salutary measures to curb undemocratic dissolution of an elected legislature.

The defector’s privilege

There is another dimension to such manipulative politics: the hurdle posed by the anti-defection law. Thanks to a 2003 amendment, now a legislature party can’t even split into two. Legislators dissatisfied with their party can only merge with another, but such members will have to constitute two-thirds of the original strength for it to be a valid merger. So has defection been finally eliminated? Not at all. Here comes ‘the defector’s privilege’. As only a formal act of voluntarily giving up membership of the party that set one up as a candidate or voting in the House in violation of a whip will attract defection, rebel MLAs now feel free to voice their criticism of their Chief Minister and join hands with the Opposition in political activities. If the Speaker takes note of their activities and disqualifies them, the plea that they had been arbitrarily disqualified without adequate opportunity to explain their position is often invoked to challenge the action. It is equally true that partisan Speakers use the disqualification provision to sustain a regime’s lost majority or gloss over the support bought over from Opposition members or independents.

The question that arises is whether the Speaker is the right authority to adjudicate matters of defection. In the judgment that upheld the validity of the Tenth Schedule (the anti-defection law), a dissenting judge had pointed out that the Speaker’s “tenure being dependent on the will of majority therein, likelihood of suspicion of bias could not be ruled out.” Changing the adjudicating authority in matters of disqualifying defectors is a key reform that is required in law.


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