Uttarakhand: Public Chicanery by Both the Congress and the BJP

NEW DELHI: The imposition of President’s rule, Article 356 of the Constitution on the recommendation of the BJP Central Government, in Uttarakhand governed by the Congress party has again revived the debate ---held since the Constituent Assembly discussions--- about the propriety of such a provision.

Broadly one can make a safe assertion that Article 356 has been often misused by whichever party was in government at the Centre. The reluctant resort to it by, the Nehru Government to dismiss the Namboodiripad Government was amongst the first blow on Provincial Autonomy. (I have it on the authority of Justice Krishna Iyer who was a Minister in the Namboodiripad Government and had met Nehru to dissuade him to do so, that the pressure had come from Indira Gandhi at the time.)

Another important case of dismissal was in 1977 when the Janata Government dismissed Congress state Governments on the puerile plea that the party had lost confidence as it had lost the Lok Sabha elections. The plea was rejected outright by the Supreme Court.

Similarly the Supreme Court rejected the action of the central Congress Government when its Governor Buta Singh dismissed the opposition ruled Bihar Governments (in this case the former Congress Law Minister HR Bhardwaj made the sensational public disclosure that he had been asked to influence a Supreme Court Judge about it, but he refused to do so, and thereafter was blacklisted by the Congress High Command). The Supreme Court held the proclamation illegal.

And yet with all my continuing opposition to the imposition of Presidents rule in the states, I must reluctantly accept that the use of Article 356 to dismiss nine BJP dominated states Government in Bommai case (1993) was welcome, as it strengthened the secular character of our country against communal forces.

But the Presidents rule in Uttarakhand is a mixed bag, brought up and acted queerly by both the main parties, Congress and BJP. A resume of facts leading to the President’s rule shows the ugly face of both parties. Uttarakhand Assembly has 70 members. Before the suspension, the Congress government had 36 members supported by 6 independent MLAs (total 42). Then 9 Congress MLAs led by Bahuguna formed a separate group and announced their intention to vote against Chief Minister Harish Rawat. Earlier one B.J.P. member had crossed over to the Congress party, the BJP asked the Speaker to disqualify him but he refused to do so. During the budget debate, the Speaker of the Assembly even rejected a valid request for division of votes and instead declared it passed.

The Central Government recommended President’s rule which was accepted. I must frankly admit that neither the Congress nor the BJP has come out clean from this. The BJP effort at encouraging the defection of Congress MLAs shows that the main parties in their lust for power are willing to break all moral rules. Let me quote what an MLA should do if he is going to join another party. In 1946, Acharya Narendra Dev ( of the Socialist Party) was a Congress MLA from the Uttar Pradesh Assembly. When the Socialist Party decided to come out of the Congress, Acharyaji, whom Gandhiji had even wanted to take over as the Congress President, without any hesitation resigned his seat , fought the election again on the Socialist Party ticket, and lost.

I feel that apart from moral grounds, the Congress party committed a grave mistake in persuading the Speaker to disqualify Bahuguna and the others only after the imposition of President’s rule, instead of relying on the Anti Defection law which provides an easier course by bringing in the 10th Schedule of the Constitution which provides that; A Member of a house belonging to any political party shall be disqualified for being a member of the house:

a) If he votes or abstains from voting in such house contrary to any direction issued by the political party to which he belongs…..Thus if rebel Congress MLAs had voted against the budget or even abstained they would have been legitimately disqualified.

b) Further clause 9 provides that a decision of Speaker shall be final. Further clause bars the jurisdiction of the Court. But now things have gone beyond the Speaker. Disqualification after Presidents rule is a nullity, apart from the fact that no voting in the Assembly was allowed by the Speaker, and hence no charge against Bahuguna and others for defection can be leveled against them.

The matter was naturally taken to the High Court where a single judge without issuing notice to the central government passed an ex-parte order fixing the date for a floor test to be held in the Assembly. Such a strange order had to be stayed by the Division Bench, which will now hear both the parties on the next date.

I may in this connection mention a precedent in the U.P. Assembly where in the matter of a confidence vote, the Supreme Court dealt with it in a most novel way. It allowed debate in the Assembly but directed the proceedings to be televised so as to avoid any wrong presentation of what happened in the Assembly, of course subject to the order of the court later on (after all no one should object all proceedings being televised as parliamentary proceedings are televised every day). Thereafter the Division Bench could deal with the matter.

There is another unusual way for the Congress party to act. Under article 356 of the Constitution the notification would cease to operate after the expiration of 2 months unless before the expiration of that period it has been approved by resolutions of both houses of Parliament.

At present the opposition is in the majority in the Rajya Sabha. If the Congress party can rely on its colleagues why not give an embarrassing slap to the BJP in this Constitutional matter and let it face face public ridicule? Of course it is a different matter if there are chinks in the opposition – in which course naturally we will have to await for the decision by the Division Bench to sort out this ugly mess.

The matter is now in Court. May one still hope that both the parties who have disgraced themselves at the bar of public opinion for encouraging defections and equally resorting to money power, show some remorse and make a joint request to the President and Election Commission to hold fresh elections to the Assembly within three months or so. If they don’t show that maturity, then it will be for the court in its wisdom to so direct, so that an unpleasant of chapter of public chicanery can come to an end at the earliest.

(Justice Rajinder Sachar is a former Chief Justice of the Delhi High Court. He was a member of United Nations Sub-Commission on the Promotion and Protection of Human Rights.He has served as a counsel for the People's Union for Civil Liberties.[He chaired the Sachar Committee, constituted by the Government of India, on the socio-economic status of Muslims in India)