HVK Archives: Majority gives no immunity - The misunderstood article
Majority gives no immunity - The misunderstood article - The Indian Express
T.V.R. Shenoy
()
September 24, 1998
Title: Majority gives no immunity - The misunderstood article
Author: T.V.R. Shenoy
Publication: The Indian Express
Date: September 24, 1998
One of the nicest jobs in the Vatican must he that of the
devil's advocate. Let me explain what it entails for the benefit
of all those without Italians to teach them. When the Church
considers conferring sainthood upon someone, an officer in the
Vatican is appointed to oppose the case, trying to deny that
he/she was anything but an ordinary mortal.
No governor has ever been a candidate for beatification - though
one past occupant of the Lucknow Raj Bhavan acted as though by
divine right. But for the sheer fun of it, let me play the
devil's advocate against Sunder Singh Bhandari, the governor of
Bihar who has advocated dismissal of the Laloo Prasad Yadav
regime. (Yes, I know Rabri Devi sits at the top of the cabinet
table, but calling her the chief minister is carrying a joke a
bit too far.)
There are two principal arguments against giving the citizens of
Bihar a well-deserved respite from the excesses of Laloo Prasad
Yadav and his merry men. Since no sensible politician wants to
be seen backing the Rashtriya Janata Dal regime, the questions
are couched in suitably high-flown form, seemingly dealing with
fundamental constitutional issues.
First, how can one dismiss a government that enjoys a proven
majority in the legislature to which it is responsible? Second,
isn't it an incentive to defection if the House is kept in
suspended. animation?
The obvious implication is that the Vajpayee ministry is about
to commit both mistakes if it tries to wield the broom in Patna.
If we are coming down to specifics, the answer is that the
merits of any such actions shall be discussed at various fora,
at least three of them.
First, the President shall take his own time to consider the
repercussions of dismissing the Bihar ministry. Second, as Laloo
Prasad Yadav has already promised, the issue will be taken to
the judiciary if Rashtrapati Bhavan gives the green signal.
Finally, such a step must be ratified by Parliament within 60
days.
I am sure that the implications, the legality, and the ethics of
imposing President's rule in Bihar shall be considered carefully
at each step. But the questions raised are of a constitutional
nature, far removed from the specific instance of Bihar. So let
us consider them in the same academic spirit.
First, let us begin by throwing out some rubbish which has been
lying around too long. Article 356 of the Constitution is not,
repeat not, an instrument to prise a minority government out of
office. In fact, such an interpretation makes no sense at all
if you think about it. If a government can't muster the numbers
it falls sooner or later, Article 356 or no Article 356.
The men and women who framed the Constitution never envisaged
any thing as grotesque as a chief minister who stayed on if he
couldn't command a majority in the assembly. Nor did they ever
dream of a chief minister who refuses to face the House. Nor one
who bribes or otherwise manipulates his way into a majority.
So if Article 356 is not about counting noses, what is it about?
If you read what the authors of the Constitution said and wrote,
the purpose of this law is very clear. It is meant to be used
when the constitutional machinery breaks down.
For the record, it was this that was alleged when a Congress
government dismissed the E.M.S. Namboodiripad ministry in 1959.
Pandit Nehru never claimed that the Communist chief minister had
lost the support ofthe Kerala Assembly. Indira Gandhi, then
president of the Congress, never said anything about playing a
numbers game and nor did Ramakrishna Rao, the governor of
Kerala.
Nor did Pandit Nehru's grandson make the stupid claim that M.
Karunanidhi had lost the support of the Tamil Nadu Assembly in
1991. Yet the DMK government was dismissed by the Chandra
Shekhar ministry at Rajiv Gandhi's bidding on the ground that
its continuance in office threatened national security.
These instances of Article 356 proved one point - that a
majority in the legislature does not confer blanket immunity
>from dismissal. A regime cannot preside over extortion, rape,
murder, and grand larceny, and then thumb its nose at Delhi,
saying, "You can't touch us, we have a clear majority in the
Assembly!"
Article 356 was put into the Constitution precisely because the
authors of that work anticipated a situation where standard
parliamentary procedures would be turned on themselves. It is a
weapon of last resort and meant to be used as such.
To digress a little, how did Article 356 come to be reduced to
counting heads in the assembly? Simple, for the better part of
fifty years it became the favourite excuse of Congress regimes
in Delhi to oust unfriendly ministries in the states. The much
quoted, much misunderstood Bommai case ruling by the Supreme
Court was intended to bar that excuse.
Their Lordships certainly didn't say that Article 356 could
never be used if a ministry succeeded in proving a majority. All
that the Bommai case judgment says is that an opportunity must
be given to the ministry concerned if it is alleged to have lost
its support in the House.
To come down to specifics for a moment, that is what Romesh
Bhandari spectacularly failed to do in February this year when
he summarily dismissed the Kalyan Singh ministry. But then he
really didn't have any other excuse to offer for imposing
Jagdambika Pal on Uttar Pradesh.
What of the second argument, that it is essentially immoral to
keep an assembly in suspended animation because it might
encourage defections? I agree it isn't a particularly desirable
situation; ironically, it has become almost inevitable in the
wake of the Bommai judgment.
What if Parliament refuses to endorse the imposition of
President's rule or that such a decision is struck down by the
courts? There has to be a remedy in such an instance. I don't
say that the House should be in a coma indefinitely, merely that
Parliament and the courts should be given a reasonable amount of
time to correct the injustice, if any.
The situation in Bihar may or may not be a fit case to apply
Article 356. But let us not muddy the waters with talk of
majorities and minorities. A vote of confidence is not a licence
for misrule.
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