Article 356 fraud-induced crisis

THE Congress(I)'s decision, after a period of vacillation, to oppose in Parliament the Proclamation for President's Rule in Bihar has landed the Bharatiya Janata Party-led Government, and some of the BJP's regional allies, in deep trouble. It also places President K.R. Narayanan, who went beyond strict constitutional necessity to endorse the Vajpayee Cabinet's resolution in a Minute, in considerable embarrassment. With the BJP-Samata Party game plan for Bihar in a shambles and with allies like the Telugu Desam Party, the Shiromani Akali Dal and the National Conference trapped in an unenviable position vis-a-vis the issue, the Central Government will be fighting for its life during this parliamentary session.

The imposition of President's Rule in Bihar seemed at first merely to demonstrate that the Supreme Court's emphatic majority judgment in the Bommai case was no bar, or safeguard, against Article 356 fraud. The knife of Article 356 has been wielded over a hundred times, overwhelmingly for mala fide political purposes, since the republican Constitution was adopted in 1950. This time, the opportunity to use the knife for authoritarian, partisan and communal ends was provided by two atrocious massacres carried out by a private army of high caste semi-feudal landlords against desperately poor people facing double oppression - social and economic. The BJP's probably fatal blunder lay in the calculation that it could exploit the tragedy in a big way, make political opposition to President's Rule in Bihar seem anti-Dalit, and leave the Opposition helpless by compelling or pressuring the main Opposition party, the Congress(I), and some others as well to line up behind the Central Government on this vital issue.

The massacres were executed in a fascistic way on January 25 and February 10-11, 1999 in two villages in Jehanabad district in central Bihar. They were carried out by the Ranvir Sena, the gun-wielding 'army' of high caste landlords which was formed through merging various smaller private armies. The two massacres claimed 35 Dalit lives, more than half of them women and children. While the Rashtriya Janata Dal (RJD) State Government, which failed to check the landlord terror against the rural oppressed despite several warnings, must be put in the dock and exposed politically, it is clear that the continuing anti-Dalit atrocities are not the cause of the dismissal of the Rabri Devi Government and the 'suspended animation' in which Bihar's Legislative Assembly has been placed.

The formation and terroristic activities of the landlord armies predate by many years the coming into power of Laloo Prasad Yadav in 1990 as Janata Dal Chief Minister of the State. Over the past two decades, these armies have brutally liquidated nearly 500 landless or land-poor people, overwhelmingly Dalit, in Bihar. Of this number, nearly 280 (over a third of them, women and children) have been butchered after the Ranvir Sena was formally banned in July 1995. Looking at the post-Emergency experience of Bihar as the site of 'social warfare' in which landless Dalit people have been the principal target, Oliver Mendelsohn and Marika Vicziany in their book, The Untouchables: Subordination, Poverty and the State in Modern India (Cambridge University Press, 1998), offer an insightful analysis of the character of the violence. This makes it clear that it is class as much as caste warfare by rural oppressors belonging to the high and rising middle castes against those "at the bottom". This analysis serves to counter the misleading and superficial accounts that appear even in liberal sections of the Indian media which tend to portray the murderous violence in the central Bihar districts of Bhojpur, Jehanabad and Patna as caste fratricide or 'violence fomented by Naxalites'. Mendelsohn and Vicziany also link the continuing anti-Dalit atrocities in Bihar to an oppressive regime of agrarian relations and the absence of any land reform.

While it is true that the Ranvir Sena's terror has been unleashed in areas of central Bihar where the Communist Party of India (Marxist-Leninist) has been active in organising the rural poor, especially Dalit landless labourers, for better wages and for land, it is not at all true that the major parties that have ruled the State or aspire to do so are not complicit in this class and caste warfare against the rural poor. As a statement issued on February 13, 1999 by Harkishan Singh Surjeet and A.B. Bardhan, general secretaries of the Communist Party of India (Marxist) and Communist Party of India respectively, makes clear: "The Ranvir Sena is an organisation formed to protect the interests of landlords, to counter the movement of agricultural labourers for better wages and for land reforms... The non-resolution of the land question is the basic cause of the tension in Bihar. Both the Congress party and the BJP, who have always sided with the landed interests, are responsible for this state of affairs. Both these parties have obstructed the passage of the agricultural labour legislation pending in Parliament for nearly two decades... Bihar is a State where neither have land reforms been enacted nor have land records (been) allowed to be corrected."

Further, a memorial presented by the CPI(M-L) general secretary, Dipankar Bhattacharya, and some others to the President on February 1, 1999 - a week after the Shankarbigha massacre of 23 Dalits - accused both the RJD administration, "especially in the key central Bihar districts of Bhojpur, Jehanabad and Patna," and the BJP-Samata Party combine of a nexus with the Ranvir Sena: "Underlying this administrative collusion is the political nexus of the Sena with both the BJP and the ruling RJD in Bihar." It added damagingly: "In the last few elections, the Sena campaigned for the BJP-Samata combine in central Bihar." The memorial, citing the open activities of Ranvir Sena chief Brahmeshwar Singh as well as police and administrative collusion with the banned organisation, warned that further massacres were being planned.

The continuing atrocities against Bihar's oppressed rural poor and the circumstances and processes leading to the imposition of President's Rule in the State represent two separate issues that must not be mixed up. The first has served as the pretext for the attempted Article 356 fraud. In Act I of the drama, the Congress(I)'s conspicuous vacillation on this vital constitutional and political question invited criticism that the former ruling party was pursuing a confused, opportunist or unprincipled course that might once again come to the aid of the forces of the Hindu Right. As it turned out, the hopes raised in the BJP-led camp that the main Opposition party would somehow bale the Government out in this high-risk adventure made the shattering of the game plan all the more traumatic and politically damaging. Unfortunately, President K.R. Narayanan, who has twice during his tenure correctly opposed invocation of Article 356 by two quite different Central governments, has allowed the two separate issues to be mixed up in his constitutional understanding this time. As Aijaz Ahmad points out in a detailed analysis that forms part of this feature, the implication of any endorsement of the dismissal of the Rabri Devi Government is that "all shall be well, or at least very much better, if there were to be a different administration - in effect, a BJP-Samata Party Government under the guise of President's Rule."

No one with any regard for constitutional propriety can fault the head of state for signing in the Proclamation of President's Rule once the Cabinet resolution he had sent back for "reconsideration" was returned to him (with 'new' and 'additional' material in this case). The wording of the relevant part of Article 74 leaves no choice in the matter: "...the President shall act in accordance with the advice tendered after such reconsideration." Where the President has been inconsistent is in writing a Minute endorsing the Vajpayee Government's action in Bihar. This, in effect, nullifies the larger part of the well-nuanced presidential objection recorded in the Minute of September 25, 1998.

In the Minute of September 1998, the President opposed the imposition of President's Rule in Bihar on four clear grounds:

In the first place, "the condition precedent for the invocation of Article 356, viz., that there has been failure of the Constitutional machinery in the state, has not been adequately made out by the Governor." It bears reiteration that in the Bommai case on which President Narayanan has relied, both judgments which constitute the Supreme Court majority opinion (on the nine member Constitution Bench) have strongly held that the condition precedent for the imposition of President's Rule is a comprehensive breakdown of the Constitution, a situation of constitutional impasse, in the State concerned.

Secondly, President Narayanan's September 1998 Minute held that "it would be imprudent to take action under Article 356 in Bihar when preliminary steps such as warning, directives and eliciting explanation from the state have not been taken by the Union." It specifically pointed out that "the absence of such warnings can render the issue of a Proclamation under Article 356 in respect of Bihar fundamentally vulnerable in the Courts of Law." This objection seems to have been met by the BJP-led Government's taking the required "preliminary steps" at least in a formal sense.

Thirdly, the presidential Minute of September 1998 contended, "the fact that the government headed by Shrimati Rabri Devi enjoys majority support in the Legislative Assembly has to be borne in mind as per the Sarkaria (Commission) passage cited in the Bommai judgment." The position of the Rabri Devi Government in the Assembly remained unaltered between September 1998 and February 1999, but, puzzlingly, this consideration does not seem to have figured in the President's application of mind this time.

Fourthly, the September 1998 Minute cites an important practical consideration: "While recommending an enactment such as this (the) Government would do well to take into account its passage in both the Houses of Parliament." And further: "It would serve little purpose, least of all to the cause of good governance in Bihar, if the Proclamation were to fail to obtain Parliamentary approval, as it needs must, in terms of the Constitution." In a politically volatile situation, even before the Congress(I) announced its decision to oppose in Parliament the Proclamation for President's Rule in Bihar, the prospect of winning parliamentary approval for the highly partisan decision must have looked uncertain at best. This practical consideration also appears to have been overlooked in the President's February 1999 Minute.

The unedifying state of affairs in Bihar and elsewhere, especially in BJP-ruled Gujarat, Shiv Sena-BJP-ruled Maharashtra and Congress(I)-ruled Orissa where grave communal atrocities have taken place and the Central Government appears in a collusive role, must be understood and responded to as a socio-political challenge. The effective democratic response would be mass political mobilisation and struggle by serious Opposition parties. In his Minute of September 25, 1998, President Narayanan made a correct and important point: "Ultimately, Bihar and other regions afflicted by the kind of malaise described by the Government need a restorative combination of political, social, economic and administrative measures." President's Rule must be understood to be a short-term measure which "cannot subserve the larger end."

In the latest Bihar case, the unjust and fraudulent invocation of Article 356 by the BJP-led Government must be swiftly undone and the State Assembly and the RJD Government must be brought back to life, regardless of how the various parties and groupings of the Opposition look upon the Laloo Prasad-Rabri Devi dispensation. Whether they deserve to continue to rule Bihar or not is a matter that can be settled in the next State Assembly electoral battle. Meanwhile, it would be a just outcome if the BJP-led communal, authoritarian and anti-federal regime fell on this issue of constitutional fraud.