Going by the book, read anew, but large issues remain

IF India is a federation, then Article 356 has proved itself benighted many times over. The constitutional knife the Centre wields against the States as an emergency weapon that is supposed to protect the Constitution has been used on more than 90 occasions since 1950 (and 106 times if applications of the comparable Section 51 of the Government of Union Territories Act, 1963 are counted). That makes it something worse than two applications a year since the Republican Constitution was adopted. If the invocation of Article 356 were a true test of whether the constitutional machinery has functioned or broken down in State after State, then India in the 50th year of its freedom would qualify, not as a proud elective democracy but as some sort of banana republic afflicted with constitutional anarchy.

The grim statistic and the stench of blood, bullying, fraud and casuistry that hangs over it substantiate the States' righter's charge that cheating has been the rule and fair play the exception in the game the Centre has played, Article 356 in hand, against the States in the name of the Constitution. What is remarkable, and very nearly an indictment of the institution of head of state, is that no President of India, sworn to "preserve, protect and defend" the Constitution, thought it fit to question even one application of the knife - until K.R. Narayanan came along and came up against the case of Kalyan Singh, Uttar Pradesh vs the Congress(I)-backed United Front Central government in October 1997.

President Narayanan, to his great credit, broke with precedent by taking his stand by the book. This he did thoughtfully and meticulously, well prepared by his reading habit; and the response from political India and from all quarters of popular opinion to what was perceived to be an independent, timely and just act by a low-key figure has been edifying. But breaking with precedent also meant, in the case of a constitutional President, venturing not very far from the well-trodden track. Although speculation abounded in the political marketplace on what the President might actually do if the Cabinet overrode his reservations by reiterating its recommendation for imposing Article 356 on Uttar Pradesh, what he would have done is clear enough.

Having exercised his dissent and sent out a signal, he would have signed the Proclamation quickly (as he himself seems to have indicated to Prime Minister Gujral), precisely in the manner envisioned by Article 74(1): "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration." However, President Narayanan is likely to have suspected that this was not going to happen.

The potency and efficacy of the presidential intervention in this nth case in an unedifying series, Uttar Pradesh 1997, did not imply in the least any kind of constitutional adventurism (or threatened confrontation with the political government of the day a la Zail Singh). In a volatile context dominated by political shakiness and uncertainty, and featuring a 'weak' minority government (subject to a host of pressures) and relatively strong States, it was the moral and political influence of a constitutional, yet personal action from the top that was admired beyond all expectation and which prevailed.

But what does going by the book mean in such a case? The Constitution does not really provide sufficient and clear guidance on when, under what specific circumstances, the knife of Article 356 can be applied for the greater good of the Republic. So going by the book means going by a creative reading of it by a Supreme Court majority (five against four) in a landmark judgment pronounced on March 11, 1994, in what has come to be known as the Bommai case. And since the Constitution, in the ultimate analysis, is what the apex court says it is, the sanctioned rules of the game as of now are as follows.

Action under Article 356 is judicially reviewable, in fact eminently so. The power conferred by this provision on the President, or rather the political government of the day at the Centre, is a conditioned power and the President's satisfaction, which is necessarily "subjective", must be formed on "relevant material". The higher courts can very properly scrutinise the material on which the Proclamation for President's rule is issued, notwithstanding the restriction laid down in Article 74(2). No irreversible action, that is, dissolution of the Legislative Assembly, is permissible until both Houses of Parliament approve the presidential Proclamation; until then the most the Central executive can do is keep the Assembly in "suspended animation". Even after parliamentary approval, courts can, in fit cases, restore the status quo ante in terms of both legislature and Ministry. States have rights, enforceable entitlements, that flow directly from the Constitution.

In the course of arriving at these historic conclusions, four judges on the nine- member bench held that when an incumbent State government's claim to command the confidence of the Assembly is challenged by some adverse development, the only place to test the issue is the floor of the Assembly. The "objective" floor test is obligatory and any attempt to substitute it for the "subjective" satisfaction of the Governor or the President will be anti-democratic and therefore impermissible. The only exception allowed to this rule is for taking care of extraordinary and difficult-to-imagine situations where either an "all pervading atmosphere of violence" or "other extraordinary reasons" make a floor test "impossible". A fifth judge, S. Ratnavel Pandian, did not have anything particular to say on the floor test. But since on all the material conclusions he went along with the four judges and in his reasoning with the Jeevan Reddy judgment, it must be deemed that the majority has held that in the case of an incumbent State government a floor test is obligatory, unless the rarest of rare cases arises (signifying virtual civil war conditions).

But if this is what the book requires in the reading of the Supreme Court, has the political system in the post-Bommai period played by the book? The two major cases of Uttar Pradesh in June 1995 and Gujarat in September-October 1996 would suggest not. In fact, in political circumstance and issues raised, the first case is highly comparable to Uttar Pradesh 1997, although with respect to the constitutional provisions invoked it is not.

Article 356 did not need to be invoked in U.P. on June 3, 1995 since dismissal of an incumbent State government by a Governor "in his discretion", seemingly sanctioned by Articles 163 and 164, did not involve either dissolving the Assembly or placing it under suspended animation. The Samajwadi Party (S.P.) Government of Mulayam Singh Yadav faced collapse as a result of an analogous double cross by the Bahujan Samaj Party (BSP). The Chief Minister demanded a floor test, as mandated by Bommai, there were analogous charges of horse-trading, intimidation, kidnapping and strong-arm methods, and the prevailing wisdom was that the incumbent was fully capable of putting together a majority notwithstanding the coalition partner's withdrawal of support. But Governor Motilal Vora "in his discretion", and with the strings pulled by the Narasimha Rao government at the Centre, refused to allow the floor test and, all in a day's work, dismissed the Mulayam Singh Ministry, hobnobbed with a BJP delegation, and swore in the first Mayawati Ministry. Although there was no need in this case for a presidential Proclamation, Mulayam Singh took the matter to court, which is where it remains - notwithstanding the fact that politics in U.P. has taken many turns since June 1995. A notable aspect of this coup in India's most populous State was the absence of any media or national public outcry against the violation of the spirit of Bommai.

The case of Gujarat in September-October 1996 is comparable to U.P. 1997 in constitutional terms as well. Here a BJP government elected with a two-thirds majority faced a mortal challenge from Shankarsinh Vaghela's revolt and breakaway, backed of course by the main Opposition, the Congress(I). The Suresh Mehta Ministry got its floor test and "won" it on September 18, 1996 (through the ingenious device of evicting members of the entire Opposition and the rebel BJP MLAs). Next day the BJP government was dismissed and the Assembly placed in suspended animation. The Union Cabinet had decided to invoke Article 356, and President Shankar Dayal Sharma signed, without reservation or murmur, the relevant Proclamation. On October 23, within minutes of the Gujarat High Court pronouncing its order refusing to stay the Governor's invitation to Vaghela to form a Ministry, he and seven other members of his group were sworn in.

It would be too much to assume that no horse-trading took place in Gujarat either prior to the floor test of September 18 or between that date and October 23, and that only fair and legal means were employed to alchemise minority into majority. The real point is that notwithstanding Bommai, a State government was dismissed and an Assembly placed under suspended animation under Article 356 - although there was no "all pervading atmosphere of violence or other extraordinary reasons" in the State. Since then politics has moved ahead in Gujarat but the constitutional issue remains tied up in court.

BUT the lack of consistency on the part of political parties, Governors, Central governments, Presidents and courts is merely one major aspect of the challenge of applying Bommai to Centre-State political equations. The other, even more vital, problem is selective invocation of the Supreme Court's landmark judgment. Bommai was historic also because it went into, and pronounced enforceable conclusions on, secularism as part of the basic structure of the Constitution. And in contrast to the federalism aspect of the judgment, the championing of secularism was not just a majority decision - it was virtually unanimous (with only Justice J. S. Verma, speaking for himself and Justice Yogeshwar Dayal, choosing not to say anything on this issue).

The Supreme Court has defined secularism in quite precise constitutional terms, declared it to be a basic feature of the Constitution, and held, emphatically, that any violation of the constitutional philosophy and provisions enshrining secularism, any mixing up of religion and politics either by a government or by a political party, is impermissible and can be proceeded against. After an in-depth and even masterly examination, Bommai pointedly sanctions lawful use of Article 356 against any State government whose acts are "calculated to subvert or sabotage secularism as enshrined in our Constitution." Such acts, the Supreme Court has held, can lawfully be deemed to give rise to a situation in which the government of a State cannot be carried on "in accordance with the provisions of the Constitution."

Apply this part of the Supreme Court verdict to the present U.P. case and it can immediately be seen how permissive, and away from both the substance and spirit of Bommai, political India is today. The revalidated Chief Minister of U.P. is the very man who headed the State administration that facilitated demolition of the Babri Masjid on December 6, 1992. He faces trial for offences related to that vile and barbaric act. Upon becoming Chief Minister a second time, he has made statements to the effect that he remains unreconstructed, unrepentant and defiant towards the secular philosophy and provisions of the Constitution.

It would be naive to propose that what has been endured for long - the anti-secular and communal political ways and activities of the BJP, its allies in the saffron brigade, and their counterparts among the minorities - can be eliminated overnight by a legalistic ban or sanction. More than ever before in independent India's half century, the imperative of combating communalism politically stands out. But Bommai provides a beacon light, and selectivity and inconsistency in invoking what it mandates presents a challenge to political India and its institutions, including its exemplary President.