The BJP and the Bommai case

The party can at any moment fall foul of the Supreme Court ruling that "secularism is one of the basic features of the Constitution" and a State Government which flouts it invites President's rule.

A. G. NOORANI

NEITHER the Bharatiya Janata Party nor its Chief Minister in Uttar Pradesh, Kalyan Singh, seems to realise how close they are sailing to the wind. They can at any moment fall foul of the Supreme Court's ruling in the Bommai case that "secularism is one of the basic features of the Constitution" and a State Government which flouts it invites President's rule. A "basic feature" of the Constitution is not open even to constitutional amendment, let alone ordinary legislation, as the Court has ruled repeatedly since 1973 in the Kesavananda Bharati case.

The record since Kalyan Singh returned to office as Chief Minister on September 21 provides warning enough. A few days earlier, on September 9, Special Judge J.P. Srivastava framed charges against 49 persons in the Babri Masjid demolition case (four years after the Central Bureau of Investigation filed the chargesheet). L. K. Advani, the BJP president, and Kalyan Singh are among the accused. The Supreme Court has yet to punish Kalyan Singh for contempt of court for the lies he told, and the assurances he gave, on sworn affidavit to the Court. In an interview to the RSS organ Panchjanya(September 20), Advani said, "Sri Ram Lalla is actually in prison. The sooner he is released the better." This provides an indication of the campaign the parivar will wage to get the curbs imposed by the Court on access to the idol, illegally planted at the site after the demolition, lifted. Kalyan Singh and his Cabinet colleagues went there on September 23 with a motorcade of 60 cars. "Some eyewitnesses said that thedistrict administration allowed entry into the makeshift temple in violation of the Supreme Court directives which allow darshan from a particular point and distance." (The Hindustan Times, September 24, 1997).

On October 2, the Rashtriya Swayamsevak Sangh's supremo, Rajendra Singh, gave a call to build a Ram temple at Ayodhya and "make the nation strong." He also renewed the Sangh parivar's demands for the hand-over of the mosques at Kashi and Mathura. He renewed them on October 11 and, as The Times of India (October 12) reported, "strongly supported Uttar Pradesh Chief Minister Kalyan Singh's commitment to build a Ram temple at Ayodhya." On October 26, the Vishwa Hindu Parishad's secretary-general, Giriraj Kishore, declared in New Delhi that preparation for construction of the Ram temple in Ayodhya is on "full swing" (The Asian Age; October 27). We have been warned.

ALL such speeches are admissible in evidence in the light of the Supreme Court's ruling in the Bommai Case, decided on March 11, 1994, upholding the imposition of President's rule in the BJP-ruled States of Himachal Pradesh, Rajasthan and Madhya Pradesh following the demolition of the mosque on December 6, 1992. (S. R. Bommai & Others vs. Union of India & Others (1994) 3 Supreme Court Cases).

Of the nine Judges who constituted the Bench that decided the case, only two were silent on the issue of secularism, Justice J. S. Verma, the present Chief Justice, and Justice Yogeshwar Dayal. Seven others, constituting an overwhelming majority, emphatically pronounced secularism to be an essential part of the basic structure of the Constitution. In a two-page judgment, Justice S. Ratnavel Pandian expressed his concurrence with P. B. Sawant J "on his conclusions 1, 2 and 4 to 8 with which B. P. Jeevan Reddy J concurs in his judgment" (page 65, para 2).

Conclusion 8 at the end of the judgment Sawant J delivered on behalf of himself and Kuldip Singh J reads thus: "Secularism is a part of the basic structure of the Constitution.

The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution."

JUSTICE A. M. Ahmadi said: "I am...in agreement with the views expressed by my learned colleagues Sawant, Ramaswamy and Reddy, JJ, that secularism is a basic feature of our Constitution. They have elaborately dealt with this aspect of the matter and I can do no better than express my concurrence, but I have said these few words merely to complement their views by pointing out how this concept was understood immediately before the Constitution and till the 42nd Amendment. By the 42nd Amendment what was implicit was made explicit." This amendment inserted "secularism" in the preamble in 1976.

Justice P. B. Sawant considered the BJP's pronouncements in detail, especially its 1991 and 1993 election manifestos (page 138). He observed: "It was difficult in this situation for the minorities in the four States to have any faith in the neutrality of the four Governments. It was absolutely necessary to recreate a feeling of security among them. They required to be assured of the safety and security of their person and property.This was not possible with the BJP Governments in power" (emphasis added).

In an extremely able and comprehensive judgment, Justice Sawant cited seven factors (page 147) including speeches by "leaders of the BJP" which established their commitment to build a Ram temple by "relocating" (read: demolishing) the mosque. The following passage is extremely relevant in the situation as it exists today. "The consequences of such professions and acts which are evidently against the provisions of the Constitution cannot be measured only by what happens in praesenti. A reasonable prognosis of events to come and of their multifarious effects to follow can always be made on the basis of the events occurring and if such prognosis had led to the conclusion that in the circumstances, the Governments of the States could not be carried on in accordance with the provisions of the Constitution, the inference could hardly be faulted." Since Justice Kuldip Singh was party to this judgment, we have a tally of four judges out of nine upholding secularism as a fundamental part of the Constitution - Ratnavel Pandian, Ahmadi, Sawant and Kuldip Singh JJ. Add to them three more and you have an overwhelming majority (7-2) on the Bench on this point.

Justice K. Ramaswamy said: "The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. I am respectfully in agreement with our Brethren Sawant and Jeevan Reddy, JJ, in this respect. Secularism, therefore, is part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man's excellence and of (sic) his moral well-being, fulfilment of material and prosperity and political justice." The Judge also said: "The manifesto of a political party should be consistent with these fundamental and basic features of the Constitution: secularism, socio-economic and political justice, fraternity, unity and national integrity" (page 172), adding, "I also agree with my learned Brethren Sawant and Jeevan Reddy JJ in this behalf" (page 175).

Justice Jeevan Reddy said, on behalf of himself and Justice S. C. Agrawal, that the 42nd Amendment "formalised the pre-existing situation." In their view, "If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well" (page 236). Their conclusion followed clearly and inexorably from that sound principle: "Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356" which empowers imposition of President's rule.

THAT seven out of nine judges reached this conclusion - and the two others merely kept silent on the point - reveals a strong judicial consensus on secularism. What is as noteworthy is the Court's acceptance in evidence of a political party's documents and the pronouncements of its leaders. The Sangh parivar has helpfully warned us of its intentions. Such a kind turn invited one in return. The Minister for Railways, Ram Vilas Paswan, did well to warn the Kalyan Singh Government, on November 16 that the Centre will not remain a silent spectator if it tried to whip up communal passions on Ayodhya, Mathura or Kashi. By parity of reasoning, nor need the President remain a silent spectator if any Government at the Centre is guilty of the same misconduct.