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Uttarakhand's Ugly Mess Reveals The Chicanery Of Both Congress and BJP

05/04/2016 1:22 PM IST | Updated 15/07/2016 8:26 AM IST
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NEW DELHI, INDIA - MARCH 29: Congress leader Jyotiraditya Scindia with others speaks to the media after meeting with President at Rashtrapati Bhavan over Uttarakhand crisis on March 29, 2016 in New Delhi, India. (Photo by Sanjeev Verma/Hindustan Times via Getty Images)

The imposition of President's Rule (Article 356 of the Constitution) in Congress-ruled Uttarakhand on the recommendation of the BJP-led central government has revived a contentious issue that dates back to the Constituent Assembly debates about the propriety of such a provision.

An insalubrious history

Broadly, one can safely assert that Article 356 has been often misused by whichever party was in government at the Centre. The Nehru government resorted to it reluctantly in 1959 to dismiss the Namboodiripad Government (no doubt pressurized by Indira Gandhi, the then Congress president. 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 from taking the step); this was amongst the first blows on provincial autonomy.

Broadly, one can safely assert that Article 356 has been often misused by whichever party was in government at the Centre.

Another important case(s) of dismissal was in 1977 when the Janata government dismissed nine Congress-run state governments. This was done on the puerile plea that the party had lost confidence because the Congress had lost disastrously in the Lok Sabha elections--this plea was rejected outright by the Supreme Court.

Similarly, the Supreme Court rejected the action of the Congress government at the Centre when Bihar governor, Buta Singh, dismissed the opposition-ruled government in the state. 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, but he refused to do so, and thereafter was blacklisted by the Congress high command. The Supreme Court held Buta Singh's proclamation illegal.

And while I continue to be a critic of the imposition of President's Rule in the states, I must reluctantly accept that its use to dismiss nine BJP-dominated states in 1993 (the Bommai case) was welcome, as it strengthened the secular character of our country against communal forces.

The Uttarakhand debacle

Currently, the imposition of President's Rule in Uttarakhand, and the run-up to it shows the ugly sides of both the BJP and Congress.

The Uttarakhand Assembly has 70 members. Before suspension, the Congress had 36 members supported by six independent MLAs (total 42). However, nine Congress MLAs led by Vijay Bahuguna, formed a separate group and announced their intention to vote against Chief Minister Harish Rawat. Previously, one BJP member had crossed over to the Congress--the BJP asked the speaker to disqualify him but their request was turned down. During budget debates the Speaker of the Assembly even rejected a valid request for division of votes and instead declared it passed.

The BJP's effort to encourage defection of Congress MLAs shows it is willing to break all moral rules in its lust for power.

On 26 March, the central government recommended President's Rule which has been accepted. I must frankly admit that neither the Congress nor the BJP have come out clean. The BJP's effort to encourage defection of Congress MLAs shows it is willing to break all moral rules in its lust for power.

Some alternatives

Let me tell you what an MLA should do if he is going to join another party. In 1946, Acharya Narendra Deva was a Congress MLA in the UP Assembly who belonged to the Socialist group within the party. When the Congress Socialist Party decided to split from the Congress (which at the time was a group within the Congress), Acharyaji, whom Gandhiji had even wanted to take over as Congress president, resigned from his seat on moral grounds. He then went on to fight elections again on a Socialist Party ticket, though he lost.

I feel that apart from moral grounds, the Congress committed a grave mistake in persuading the Speaker to disqualify Bahuguna and others after President's Rule had been imposed. Instead, they could have turned to the anti-defection law which provides an easier course by bringing in the 10th Schedule of the Constitution. According to this, a Member of a House belonging to any political party will be disqualified from this position for the following reasons:

a) If he votes or abstains from voting in such a 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 even abstained they would have been legitimately disqualified.

b) Clause 9 provides that the decision of the Speaker shall be final, and, further, bars the jurisdiction of the court. But now things have gone beyond the Speaker. Disqualification after President's Rule is a nullity, apart from the fact that no voting in the Assembly was allowed by the Speaker, and hence no defection charges can be levelled against Bahuguna and others.

If the Congress can rely on its colleagues, why not give an embarrassing slap to the BJP in this constitutional matter and let it face public ridicule.

The matter was naturally taken to the High Court where a single judge, without issuing a 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 UP Assembly. The Supreme Court dealt with the matter of a confidence vote in the 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 took place. Thereafter, the division bench could deal with the matter.

There is another unusual way for the Congress to act. Under Article 356 of the Constitution, the notification would cease to operate after expiration of a period of two months unless it is approved by resolutions of both Houses of Parliament before that time.

At present, the opposition is in the majority in the Rajya Sabha. If the Congress can rely on its colleagues, why not give an embarrassing slap to the BJP in this constitutional matter and let it face public ridicule. Of course, it is a different matter if there are chinks in the opposition. If that's the case, we naturally have to wait for the decision by the division bench to sort out this ugly mess.

One can only hope that the Congress and BJP show some remorse and make a joint request... to hold a new election to the Assembly.

The matter is now in court. One can only hope that the Congress and BJP, both of which have disgraced themselves at the bar of public opinion (by encouraging defection and equally resorting to money power) and have given a bad name to politics, show some remorse and make a joint request to the President and Election Commission to hold a new election to the Assembly within three months or so. If they don't show that mutuality, maybe 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.

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