Author: Soli J. Sorabjee
Publication: The Indian Express
Date: February 23, 2007
URL: http://www.indianexpress.com/story/23975-2.html
Introduction: Imposition of President's rule
in UP would have been patently unconstitutional
Horse-Trading, unethical means, defections
are the favourite mantras of governors for recommending President's rule in
a state. The Wamuzo ministry in Nagaland was dismissed on the ground of horse-trading
and that MLAs were allured by money as stated in the governor's report. The
governor of Karnataka recommended President's rule because "there was
incredible lack of morality, horse-trading, employment of unethical means
and political machinations". Acting on the governor's report, the Bommai
ministry was dismissed and President's rule was imposed in Karnataka.
The Supreme Court in its landmark judgment
in the Bommai case declared imposition of President's rule in Karnataka and
Nagaland to be unconstitutional. It held that President's rule can be imposed
only if there is a breakdown of constitutional machinery and a situation has
arisen "which shows that constitutional government has become an impossibility".
It ruled that horse-trading, unethical means, etc, are not valid grounds for
imposition of President's rule and dissolving legislative assemblies where
the ministry enjoys majority support. The issue of majority support should
be determined on the floor of the House which "alone is the constitutionally
ordained forum... The assessment of the strength of the Ministry is not a
matter of private opinion of any individual, be he the Governor or the President...
Such private assessment is an anathema to the democratic principle".
Some governors just do not learn. History
regrettably repeated itself in Bihar when Governor Buta Singh recommended
dissolution of the Bihar Legislative Assembly and prevented Nitish Kumar from
staking a claim to form a government on the ground that he would cobble together
a majority by horse-trading, allurement and other foul means. The Supreme
Court in the Bihar case, Rameshwar Prasad, ruled that the governor had taken
totally irrelevant and extraneous factors into account and his action "could
under no circumstances be held to be bona fide". It further declared
that dissolution of the Bihar legislative assembly by the Centre was "a
wholly unconstitutional act".
In the Bihar case the Supreme Court laid down
an extremely important principle, namely, that the governor "cannot override
the majority claim because of his subjective assessment that the majority
would be cobbled by illegal and unethical means. No such power has been vested
in the Governor. Such a power would be against the democratic principles of
majority rule. The Governor is not an autocratic political ombudsman. If such
a power is vested in the governor and/or the president, the consequences can
be horrendous. The ground of maladministration by a state government enjoying
majority is not available for invoking power under Article 356".
The Supreme Court further held that "minority
governments are not unknown... It is also not unknown that despite various
differences of perception, the party, group or MLAs may still not opt to take
a step which may lead to the fall of the government for various reasons including
their being not prepared to face elections. These and many other imponderables
can result if MLAs belonging to even different political parties come together.
It does not necessarily lead to assumption of allurement and horse-trading".
The court was fully conscious about the evils
of defections. But it rightly pointed out that the remedy lay elsewhere by
enactment of stringent anti-defection laws and their strict implementation,
not by recourse to Article 356, which has serious repercussions on the federal
fabric of the Constitution.
From the press reports it appears that the
UP governor has recommended President's rule in the state on more or less
the same grounds, namely horse-trading, unethical practices, malfunctioning
of the government etc, and the alleged machinations of Mulayam Singh to cobble
up a majority by foul means and engineering defections which would destroy
the fabric of democracy. It is significant that these very arguments were
advanced by the Centre as justification for dissolution of the Bihar assembly
but were rejected by the Court.
What about morality? The Supreme Court pointed
out that "the concept of morality has also been changing from time to
time having regard to the ground realities and the compulsion of the situation
including the aspect and relevance of coalition governance as opposed to a
single-party government". It held that "the Constitution does not
contemplate the dissolution of Assemblies based on the assumption of such
immoralities".
The Supreme Court judgments in Bommai and
in the Bihar case are a complete answer to the purported justification for
imposing President's rule in UP.
It is bizarre for the Congress, which has
historically been a notorious violator of Article 356, to play the morality
game. Did the Union government resign when the Supreme Court struck down the
dissolution of the Bihar assembly as wholly unconstitutional and held that
the report of the governor was mala fide? Has the Congress forgotten that
the minority Narasimha Rao government was cobbled up by the foul means of
bribing certain MLAs of Jharkhand Mukti Morcha which is an established fact?
The judgment of the Supreme Court of February
14, 2007, in Rajendra Singh Rana's case, which is the sheet anchor for demanding
dismissal of the UP government does not in any manner militate against the
principles laid down in the Bommai and Bihar cases. The Supreme Court held
in that case that the speaker was not justified in keeping the applications
for disqualification of MLAs on the ground of defection pending and not deciding
them. The second conclusion of the Supreme Court was that the 13 members of
the BSP who met the governor on August 27, 2003, stood disqualified and a
declaration was given to that effect. The Supreme Court held that even a split
involving 37 MLAs on February 26, 2007, was not established. However, there
is not a sentence nor a word that the formation of the Mulayam Singh government
was ab initio illegal or its further functioning is unconstitutional. These
matters are illegitimately read into the judgment by misinterpreting it and
playing a hoax on the political parties and the people.
The dates of the UP elections have been announced
by the Election Commission. The floor test is scheduled for February 26. Imposition
of President's rule in UP at this stage would be patently unconstitutional
and a fatal onslaught by the Centre on the federal structure, which is a basic
feature of our Constitution.
The writer is a former attorney general for
India