HVK Archives: Constitutional morality violated in Gujarat
Constitutional morality violated in Gujarat - The Indian Express
Soli J. Sorabjee
()
21 September 1996
Title : Constitutional morality violated in Gujarat
Author : Soli J. Sorabjee
Publication : The Indian Express
Date : September 21, 1996
The incidents of violence and other acts indulged in by
the members of Gujarat Legislative Assembly would shame
even the rowdiest street fighters. But whilst we rightly
bemoan the disgusting behaviour of these legislators we
cannot justly condone yet another assault on the Consti-
tution by imposition of President's rule in Gujarat.
It is unfortunate that the United Front Government could
not resist the fatal attraction of Article 356. After
the Supreme Court's judgment in S. R. Bommai's case it is
well settled that Article 356 is an extreme power and is
to be used as a last resort in cases where it is manifest
that there is an impasse and the constitutional machinery
in a State has collapsed. Situations which can be rem-
edied or do not create an impasse, or do not disable or
interfere with the governance of the State according to
the Constitution do not warrant the issuance of a Presi-
dential proclamation. The Supreme Court has clearly
ruled that "it is not each and every non-compliance with
a particular provision of the Constitution that calls for
the exercise of the power under Article 356(1). The non-
compliance or violation of the Constitution should be
such as to lead to 6r give rise to a situation where the
Government of the State cannot be carried on in accor-
dance with the provisions of the Constitution".
In the view of the Supreme Court and the Sarkaria Commis-
sion mere law and order situation in a State does not
warrant imposition of President's rule. The acts of
violence and intimidation inside the Assembly cannot be
equated with breakdown of law and order in the State nor
with the breakdown of the constitutional machinery in the
State. Neither the "undemocratic efforts to bulldoze the
vote of confidence in the State Assembly" nor the ugly
and shameful incidents which occurred in the State Assem-
bly can justify imposing Central rule and interfering
with the life of a duly-elected Assembly. Indeed that
would enable errant members to bring about dissolution of
an Assembly by virtue of their wrongful actions.
Recourse to Article 356 in the Gujarat situation as in
the present case would set a pernicious precedent and
would encourage the depreciable activities of legislators
in other States who are keen to secure the fall of the
Government. Legislators who commit acts of violence and
indulge in reprehensible activities in the Assembly do
not deserve to continue as legislators and should be
punished by disqualifying them as legislators by an
appropriate amendment of the anti-defection law.
It must be remembered that Article 356 is not punitive in
nature. Its underlying purpose is remedial. Moreover by
imposing President's rule, which in effect means Central
rule, the persons punished are the people of the State
who have elected the Government.
As the Supreme Court has pointed out the people in every
State desire to fulfil their own aspirations through
self-governance within the framework of the Constitution.
hence interference with the self-governance also amounts
to the betrayal of the democratic aspirations of the
people which is a negation of the democratic principle
which runs through our Constitution. therefore "the
occasion to interfere with the self-governance should
both be rare and demonstrable compelling".
One fails to understand the indecent haste with which the
action was taken. The question of confidence in the
erstwhile government could have been determined with
adoption of appropriate and constitutionally permissible
measures. It is unfortunate that the principles laid
down by the Supreme Court in the case of S. R. Bommai,
who happens to be a distinguished member of the Cabinet,
have been disregarded and action has been taken which is
prima facie against the letter and spirit of the Consti-
tution and which is contrary to the precept of what B. R.
Ambedkar who would call, constitutional morality, a tacit
but basic postulate of our Constitution.
It is never late to recognise an error and revoke the
Presidential Proclamation. During Janata Dal Government
headed by V. P. Singh an ill-conceived imposition of
President's rule in Karnataka was subsequently revoked.
This is a salutary precedent which can be followed in the
present case. Indeed that would be an act of dignified
and farsighted statesmanship.
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