Turning victory into defeat

The UPA's manipulative and tactless handling of Jharkhand allowed the BJP to win power cynically. The events expose flaws in our institutional arrangements.

WHEN elections to the Jharkhand Assembly were announced, the United Progressive Alliance (UPA) seemed remarkably well-placed to score an emphatic victory. All it had to do to inflict a humiliating defeat upon the ruling - and far-from-popular - BJP-led National Democratic Alliance (NDA) was to rebuild the broad social coalition that held the key to its victory in 13 out of Jharkhand's 14 Lok Sabha seats just nine months earlier. That coalition, politically sealed in a front comprising the Jharkhand Mukti Morcha (JMM), the Congress, the Rashtriya Janata Dal (RJD) and the Left, could have won a three-fourths majority only if the Loka Sabha voting pattern prevailed.

In the event, the UPA failed to rebuild such a coalition. The Congress refused to negotiate an alliance with the RJD and the Left, and instead unilaterally made a deal with the JMM for 67 out of the Assembly's 81 seats. The UPA failed to convert its 10 percentage-point advantage over the NDA into a majority of Assembly seats.

Worse, when left trailing behind the BJP-Janata Dal (United)'s 36 seats by three seats, the UPA resorted to manipulation, which eventually put the NDA in power and allowed it to claim democratic legitimacy. As we see below, the claim is fraudulent, but it puts the UPA on the defensive.

Behind the root-cause, namely, the Congress' failure to make the right alliances, lay the party's paranoid fear that it might be outperformed in Bihar by Lalu Prasad - who might get "too big for his boots". The failure of proper seat adjustment in Bihar, partly attributable to the emergence of the Lok Janshakti Party as an anti-RJD force, impacted Jharkhand through the Congress-JMM deal, which wrecked a prospective winning alliance. Underlying both was the Congress' self-delusion that it has rejuvenated itself sufficiently for it to become the pre-eminent party in the Hindi belt.

Besides the Congress's strategic miscalculation, two factors shaped the unfolding of the Jharkhand drama: the controversial role of Governor Syed Sibtey Razi in swearing in Shibu Soren as Chief Minister, overruling Arjun Munda's claim; and second, the Supreme Court's intervention, which has understandably caused great disquiet among political parties as well as those who take a serious interest in constitutional affairs.

If the first gave a handle to the BJP, the second further helped it, albeit inadvertently. The legal intervention also bears testimony to the fragility of our institutional political arrangements, captured in the vital principle of separation of powers between different organs of the state.

The Jharkhand episode has not only halted the UPA's forward march, and temporarily, the process of marginalisation of Hindutva forces. It has also left Indian democracy somewhat shaken and enfeebled. This calls for serious reflection.

The UPA made its first major post-election mistake by staking its claim to power although it did not credibly substantiate the contention that 42 MLAs supported it. It complacently allowed caretaker Chief Minister Arjun Munda to poach upon MLAs belonging to pro-UPA parties, including Enos Ekka, Harinarayan Rai and Madhu Kora.

The UPA proved tactless or inept in combating the BJP's high-powered operation, mounted by senior leaders Rajnath Singh and Ravishankar Prasad, to first lure and then abduct MLAs to try to muster a legislative majority through bribery and coercion. The UPA did not act with the necessary speed when it could. Soon began the MLAs' forced odyssey from Ranchi to Rajasthan and back via West Bengal, Orissa and Delhi. And by then, it was too late.

Meanwhile, Governor Razi, about whom little was known apart from his Congress background in Rai Bareily, swore in Soren without making out a convincing prima facie case that he would be better able than Munda to form a viable government.

There can be two opinions about whether the Governor enjoys enough discretionary power under the Constitution to make such a judgment. (Senior Counsel Rajeev Dhawan argues that he does.) But there can be no dispute that he granted Soren an exceedingly long three weeks in which to prove his majority in a floor-test.

Upon Soren's installation, the BJP became hyperactive on two fronts: vicious backroom manipulation, offers of inducement (of ministerial berths to all five independent MLAs), cynical forms of kidnapping, and outright coercion; and the seemingly "democratic", benign front represented by recourse to legal argument, propriety and constitutional rectitude.

Thus, even while the 41 MLAs, including the NDA's own flock, were under tight coercive watch and were prevented from using the telephone, even from going to the toilet on their own, the NDA feigned injured innocence at being denied a "democratic" chance to prove its "majority". Its majority could not be established until the very last moment. (Even now, there are valid doubts about the legitimacy and validity of support of three defecting MLAs - and Munda's survival.) But the BJP-NDA behaved throughout as if majority support was self-evident, as was Governor Razi's bias merely by virtue of being a UPA appointee.

Only an indulgent media could have failed to notice this enormous contradiction and duplicity. But much of it uncritically swallowed the BJP's claim to political rectitude, dutifully invoked fears of "a return to 1975" under Congress rule, and recalled the past record of many Assembly Speakers and Congress-appointed Governors in abusing their offices.

Obliterated thus was the BJP-Jana Sangh's and the NDA's own odious record in appointing impostors to power and dismissing governments even while they enjoyed legitimate majority support. As the late Madhu Limaye would vividly recall, it was the Jana Sangh contingent in the Janata Party which manipulated Jayaprakash Narayan to mount pressure on the post-Emergency Morarji Desai cabinet to dismiss the elected governments of the Congress in many States - despite the fact that they continued to enjoy majority support. This was done on the lame excuse that the Congress had lost the confidence of the "Indian people" because it was defeated in the 1977 Lok Sabha elections.

Consider the NDA's more recent record. In 1999, its appointee and long-standing BJP leader Sunder Singh Bhandari wanted Rabri Devi dismissed in Bihar on bogus grounds - because anti-Dalit violence had occurred. The RJD government would have been turfed out had Bhandari not been overruled by President K.R. Narayanan. In 2000, Governor Vinod Pandey swore in Nitish Kumar who patently lacked a majority and had only a fraction of the RJD's strength. Kumar quit in ignominy.

The number of times the BJP has resorted to defection and blatant manipulation by Speakers or Governors to manufacture legislative majorities for its alliances is legend. In Uttar Pradesh, it used such methods on each of the three occasions on which it formed a coalition with Mayawati. The same story was repeated over the past six years in Goa and in Arunachal Pradesh, Manipur and Nagaland, where the BJP engineered wholesale defections to itself/Samata Party-JD(U).

The BJP has an essentially hypocritical, instrumentalist and opportunist attitude towards constitutional democracy. To start with, its core-ideology of Hindutva militates against the Constitution's bedrock values of secularism and pluralism. It stands out as the only major party in India dedicated to radically altering the constitutional order to accommodate the claimed primacy of Hindus in society and polity.

The BJP also desperately yearns for an over-centralised, anti-federal, unitary, quasi-authoritarian, form of rule. It set up a commission to review the Constitution and bring about such change in 1998. (It's another matter that the venture failed.) No less noteworthy is the BJP's position that "matters of faith" are above the law - a stand it has advocated with pernicious effect in respect of the Ayodhya temple. So much for its proclaimed respect for the higher judiciary and constitutional order!

Ultimately, the UPA asked Soren to resign; it implicitly apologised for its conduct. The NDA did no such thing. On the contrary, it is self-righteously strutting about as if it saved democracy. In reality, the NDA proved superior to the UPA not in its democratic credentials, but in efficiently running an elaborate, well-planned Machiavellian operation to induce defection and retain MLA support through coercion.

However, the greatest tragedy of the Jharkhand episode is that the President of India implicitly endorsed the NDA's claim to government, and the Supreme Court intervened on the same presumption. Both actions bestowed unprecedented and grossly undeserved respectability upon the BJP and its anti-democratic methods.

It was completely out of order for President Kalam to repeatedly receive, and give a hearing to, delegations of NDA leaders, including many from Jharkhand. Under our constitutional scheme, the President has no role whatever in appointing the Chief Minister of a state - a function exclusively reserved for the Governor. Nor is the President the court of last resort in Centre-State relations, or more generally, on matters of justice.

Meeting NDA leaders repeatedly and asking Governor Razi to advance the floor-test was beyond the remit of the President's authority. His office did not once counter the false report that the NDA's "41 MLAs" were paraded before him. Kalam could not but have noticed that pro-BJP sections of the media played up the story to lend legitimacy on his behalf to the NDA's sectarian claims.

THE Supreme Court further reinforced the same process. While hearing a petition moved by Munda, it said: "If the averments of the petitioner are correct, then the action of the Governor ... is a fraud on the Constitution." The "if" is simply unbelievable. It is altogether illogical to preface such a prima facie indictment of the Jharkhand Governor with an "if".

That harsh verdict could only have been reached after going into the merits of Munda's allegations and weighing all the pertinent facts, including Razi's rationale in appointing Soren, and his assessment of the likely support for the two rival alliances. The Court did not do this. If it was convinced that Razi had erred, it could have ordered him to reconsider his decision. Instead, it prejudged his guilt and cast suspicion upon the pro tem Speaker and his ability or will to conduct a fair confidence vote - presumably, on the basis of media reports.

Even worse, the court intruded into the Assembly's domain and ordered that it must hold a confidence vote on March 11. It stipulated procedures: the agenda must be limited to the trust vote, the proceedings must be conducted peacefully and without "disturbance", and the results must be "announced by the pro tem Speaker faithfully and truthfully".

This amounts to serious interference in State legislatures. Part VI of the Constitution mandates a quasi-federal structure and a great deal of autonomy to legislatures. Articles 122 and 212 are explicit that the courts have no jurisdiction to inquire into their proceedings. Article 212 reads: "(1) The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member or the Legislature [empowered to regulate procedure]... shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers... "

Such autonomy is the obverse of the protection given to the higher courts and their judges in respect of legislative debates. Parliament/legislatures cannot discuss "the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties", except in regard to impeachment proceedings.

These are vital demarcations between the executive, the judiciary and the legislature. Such separation of powers is a pillar of democracy. The Supreme Court has, regrettably, blurred these demarcations. This is one more step towards the expansion of the court's remit and the erosion of the domains of the legislature and the executive.

This is part of a process which has been in motion since the Second Judges' Case. This created a higher judiciary that is virtually self-appointing and not fully answerable to anyone in its exercise of a number of self-defined powers. The courts have entered into areas - for instance, micro-management of urban transport and the right fuel to be used, or banishing lakhs of people from cities in the name of "environmental protection" - which should be considered out of bounds for the judiciary.

At the same time, they have tended to ignore or dismiss well-thought out petitions that seek to restrain or punish corporate malfeasance (for instance, Bhopal or Enron's Dabhol project), or prevent enormous human rights violations, as in the Narmada displacement case.

The time has surely come to restore the appropriate balance between the judiciary, the legislature and the executive. One way of doing this is the proposal, favoured by Lok Sabha Speaker Somnath Chatterjee, to refer the issue of separation of powers to the Supreme Court under Article 143. Other means could also be considered.

The fear that this will precipitate a "confrontation" with the judiciary is exaggerated. On the contrary, a focussed debate will clarify matters and help ensure that the BJP-NDA cannot exploit the court's pronouncements to narrow political ends. There's no merit in leaving the issue unresolved when so much is at stake.