Sunday, 19 June 2016

Both Cong, BJP to blame

Both Cong, BJP to blame
Rajinder Sachar

The imposition of the President’s rule under Article 356 of the constitution on Uttarakhand governed by Congress following the recommendation of the NDA-ruled Centre has again revived the debate held even during the Constituent Assembly debates about the propriety of such a provision. Broadly, one can make a safe assertion that it has been often misused by whichever party was at the helm at the Centre. 

The Jawaharlal Nehru government reluctantly resorted to dismiss Kerala’s Namboodiripad government. I have it on the authority of the late Justice Krishna Iyer (who was a minister in Namboodiripad government and had met Nehru to dissuade him to do so). It was among the first blow on the provincial autonomy.

Another important case of dismissal was in 1977 when the Janata Party government at the Centre dismissed Congress states governments on the puerile plea that the latter had lost the confidence of the people because in the parliamentary elections, Congress lost disastrously. This plea was rejected by the Supreme Court.

Similarly, the apex court rejected the action of Central government ruled by the Congress when governor Buta Singh dismissed the Opposition-ruled Bihar government (in this case, former law minister H R Bhardwaj of the Congress made the sensational public disclosure that he had been asked to influence the Supreme Court about it, but he refused to do so, and thereafter he was ‘blacklisted’ by the Congress high command). The Supreme Court held the proclamation illegal.

Despite all my continuing opposition to imposition of Article 356, I must reluctantly accept the dismissal of 9 BJP-dominated state governments in the wake of the razing of the Babri Masjid in 1992. It was welcome as it strengthened the secular character of our country against communal forces.

But the President’s 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. The Uttarakhand Assembly has 70 members. Before the suspension of 9 of their MLAs, Congress had 36 members and was supported by 6 independent MLA (total 42). Than gradually, 9 Congress MLA led by former chief minister Vijay Bahuguna formed a separate group and announced their intention to vote against CM Harish Rawat.

Earlier, one BJP member had crossed over to Congress, BJP asked the Speaker to disqualify him but the Speaker refused to do so. During budget debates, the Speaker even rejected a valid request for division of votes and instead declared it passed. I must frankly admit that neither the Congress nor BJP has come out clean. BJP’s effort at encouraging defection of Congress MLA shows that main parties in their lust for power are willing to break all moral rules.

I feel that apart from moral grounds, Congress committed a grave mistake in persuading the Speaker to disqualify Bahuguna and others after the Centre had imposed President’s rule instead of relying on the anti-defection law which provides an easier course by resorting in 10th Schedule of the Constitution.

No defection

This provision provides that: “A member of a House belonging to any political party shall be disqualified, 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 the rebel Congress MLAs had voted against the budget or had even  abstained, they would have legitimately been disqualified.

The law provides that the decision of the Speaker shall be final. It bars the jurisdiction of the court. But now, things have gone beyond the Speaker. Disqualification after President’s rule is a nullity. No voting in the Assembly was allowed by the Speaker and hence no charge against Bahuguna and others for defection can be levelled against them.

The matter was naturally taken to the High Court where a single judge bench without issuing a notice to 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 from the next date.  

I may, in this connection, mention a precedent in the Uttar Pradesh Assembly, on a matter of confidence vote where 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.

There is another unusual novel way for Congress to act. Under Article 356, the notification would cease to operate after 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 a majority in the Rajya Sabha. If Congress can rely on its colleagues, why not give an embarrassing slap to the BJP in this constitutional matter and let the party 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 the decision by the division bench to sort out this ugly mess. 

The matter is now in the court. May one still hope that both the parties who have disgraced themselves at the bar of public opinion for encouraging defection and equally resorting to money power and have given bad name to politics, show some remorse and make a joint request to the President and the Election Commission to hold fresh polls to the assembly within three months or so. If they don’t show that mutuality, may be the court in its wisdom could so direct so that an unpleasant of chapter of public chicanery can come to an end at the earliest.

(The writer is former chief justice of Delhi High Court)

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