THREE strikes and out. American partisans of capital punishment have adopted a sporting metaphor to suggest that offenders who hit the threshold of three grave crimes should be put out of the way. Upholders of the rule of law in politics have always argued that a Governor who breaches the limits of constitutional propriety invites his removal from office. Yet, for Romesh Bhandari, three strikes are still not reason enough. Will the stinging rebuke of the Allahabad High Court's reversal of his decision finally provoke his departure from the Raj Bhavan in Lucknow?
Bhandari's latest coup has created a situation that is unprecedented for a multitude of reasons. It has for the first time invited judicial intervention in the process of Ministry formation, which has always been an area of legislative privilege. It has attracted the ire of the head of state, whose advice has been grossly disregarded by a constitutional functionary holding office at his "pleasure". And it depended for its validity upon a precedent that was, till recently, almost uniformly denounced as wrong by the supporters of his action.
Bhandari was spared the ignominy of summary eviction by President K.R. Narayanan's decision to play by the book. The doctrine of "pleasure" seemingly leaves a wide area of discretion for the President. But this is merely a curious and rather archaic turn of phrase. Successive judicial interpretations have clearly laid out the principle that all exercises of presidential authority have their foundation in the advice of the Union Council of Ministers. The President could advise and counsel, and, presumably in an extreme situation, urge a certain course of action. But he cannot act without the advice of the Union Cabinet.
At a meeting with the President on February 22, Prime Minister I.K. Gujral made it clear that the Union Cabinet was in no position to recommend the removal of Bhandari. Such a decision, if at all, is to be made by the government that will be sworn in after the general elections. Gujral's intervention reflected the limited room for manouevre that a caretaker government enjoys. But it still left open the possibility of an explosive High Court ruling annulling the appointment of the Jagadambika Pal Ministry.
Bhandari's most recent actions constitute the third in a sequence of rather questionable gubernatorial decisions. The first was in October 1996, when he recommended the extension of President's rule in the State beyond the period of one year allowed under the Constitution. After a few minor quibbles, the Centre acquiesced in this move, invoking Article 356 of the Constitution despite the absence of a clear mandate. Initial reservations of the Left parties were set aside under the insistence of Mulayam Singh Yadav. And an adverse ruling by the Allahabad High Court was overcome through the simple device of referring it to the Supreme Court.
Bhandari's second dubious intervention came a year later. In recommending the dismissal of the Kalyan Singh Government after it had survived a trial of strength, the Governor seemed in undue haste to ascribe blame for the violence that had broken out that day in the Assembly. The Union Cabinet itself was divided, but sent his recommendations onwards for presidential ratification. In referring back the matter to the Cabinet, the President remained well within his constitutional powers. A reaffirmation by the Cabinet would have obliged him to bring Article 356 into effect. But the Cabinet being rather infirm in its convictions, the decision was revoked at the slightest suggestion of scepticism from the head of state.
Bhandari's third strike confounded a situation of increasing murkiness. The High Court intervention upheld a principle of restitution, but made it clear that a constitutional functionary had been party to a conspiracy to undermine the rule of law. Yet Bhandari survives. What may not are the basic rules of engagement of a parliamentary democracy.
The only rationale for Bhandari's recent action is premised rather uncomfortably upon the assumption that a wrong is set right when it is compounded. His specific reference to the 1995 precedent, when Mulayam Singh Yadav was dismissed as Chief Minister without the courtesy of a trial of strength on the floor of the Assembly, makes this clear.
The events of June 1995 bear recall in this context. The Bahujan Samaj Party then had withdrawn support to the Mulayam Singh Ministry and concurrently won an undertaking of unconditional support from the Bharatiya Janata Party (BJP) for the formation of a successor government. An argument was made out that the situation was covered by Articles 163 and 164 of the Constitution, which accord the Governor a limited power of "discretion" in the appointment of a Ministry.
If the incumbent, Governor Motilal Vora, was initially reluctant to invoke this power of discretion, he was quickly persuaded of its relevance by two factors. First, Mulayam Singh insisted on choosing a day of his convenience for the trial on the floor of the House. And secondly, in his efforts to mobilise legislative support, he seemed to step a long way beyond the limits of legitimate political lobbying.
No single party or individual has since had a monopoly over coercion and intimidation in the U.P. context. But the BJP set a record of sorts in the use of illicit gratification last year when it brought into being a huge Ministry.
The single most important feature of the Lucknow farce is that it leaves no party with any credible claim to the moral high ground. But the events may have effaced some of the more unsavoury memories of the Kalyan Singh Government's survival strategies. Which way the crisis will influence the concurrent process of polling is anybody's guess. There is one point of view that the momentary collapse of the BJP's experiment in Lucknow galvanised the diverse political forces ranged against it, and succeeded in bringing forth a larger voter turnout on their behalf. But there is at least an equal probability that with adversaries like Romesh Bhandari, the BJP may soon find it has no need for friends.
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