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Horse-trading mantra

Horse-trading mantra

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

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