The limits to central authority

Of the majesty of government vs the majesty of law, in the context of the recent events in Tamil Nadu.

The reduction of politics to a spectator sport... has been one of the more malign accomplishments of television. Television newsmen are breathless on how the game is being played, largely silent on what the game is all about.

- John Kenneth Galbraith

THE recent confrontation between the leadership of the National Democratic Alliance (NDA) and the Tamil Nadu government was carried on not through press statements or public meetings, not through communiques or hotline calls, but through TV shows. The excitement of the political show is over and the TV crew has returned to the usual serials of entertainment. Now that the fury and din of the confrontation have cooled down, we can impassively examine the issues and questions that figured during this tumultuous period. The impasse has left many issues unresolved and many questions unanswered.

Federalism is a basic feature of the Indian Constitution and should remain the lodestar if the unity of the country and the democratic character of its governance are to be preserved. The principles of freedom and the rule of law should remain unchanged in the midst of frequent changes in government and in the mindset of parties and political leaders, in and out of power. Democracy will survive only if it has power to check power. In his Spirit of Law Montesquieu said: "Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go... To prevent this abuse, it is necessary from the very nature of these things that power should be check to power. A government may be so constituted as no man shall be compelled to do things which the law does not oblige him, not forced to abstain from things which the law permits."

The first reaction of the NDA leaders to the arrest of former Chief Minister M. Karunanidhi and Union Ministers Murasoli Maran and T.R. Baalu was a frantic demand for immediate action under Article 356 of the Constitution. It has been the old itch of all ruling parties at the Centre to rely on the sledgehammer of President's Rule to tame a disobedient State. In the case of the recent Tamil Nadu turmoil, action under Article 356 was more easily proposed than done. First of all, the Vajpayee government does not have the requisite strength in the Rajya Sabha to get approval for a proclamation under Article 356. Out of the total strength of 245 Rajya Sabha members, the support for the BJP alliance may be far below 100. Further, there are clear decisions of the Supreme Court against indiscriminate use of Article 356 to topple a State government.

Till the end of the 1980s, the ruling party having requisite majority in both Houses of Parliament faced no difficulty in dissolving a State Assembly and dismissing its Ministry, taking for granted the fact that the proclamation would be approved without any difficulty by Parliament. The indiscriminate use of Article 356 was called to a halt by the nine-Judge Constitutional Bench of the Supreme Court in the Bommaicase (AIR 1994 SC 1918). The court held, among other things:

(a) The judicial review of the proclamation under Article 356 would lie on any of the grounds upon which an executive determination on 'objective satisfaction' could be questioned;

(b) In no case the President shall exercise the power of dissolving the Legislative Assembly till at least both the Houses of Parliament have approved the proclamation issued under the Clause (1) of Article 356, and

(c) If the proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of the Parliament, it will be open to the court to restore the status quo ante to the issuance of the proclamation and hence to restore the Legislative Assembly and the Ministry... The court, in appropriate cases, will have power by an interim injunction to restrain holding of fresh elections to the Legislative Assembly pending final disposal of the challenge to the validity of the proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless.

After the landmark Bommai judg-ment, the Centre has been unable to resort to the use of Article 356 on flimsy grounds. In the background of the Supreme Court decision and the lack of requisite support in Parliament, the Centre dropped the proposal of action under Article 356 and turned to consider issuing a stern 'warning' to the Tamil Nadu government. There are several constitutional provisions under which the Union government can issue directions to a State, as in Article 256 of the Constitution (to ensure compliance with laws made by Parliament and the existing laws of the State), Article 257 (to ensure that the executive power of the State does not impede or prejudice the exercise of the executive power of the Union), Article 339(2) (for welfare of Scheduled Castes and Scheduled Tribes in the State), Article 344(4) (to implement the recommendations of the Commission and Committee of Parliament on official language), Article 355 (during operation of national emergency, to ensure that the State carries on in accordance with the provisions of the Constitution) and Article 365 (to ensure that the State complies with the directions given by the Union under any of the provisions of the Constitution).

In the past, the Dravida Munnetra Kazhagam (DMK) and other parties, while in the Opposition, had vehemently insisted on removal from the Constitution of the provision to issue a 'warning'. The DMK appointed a committee with Era Sezhiyan (this author) and Murasoli Maran as conveners to suggest further action to be taken on the Rajamannar Committee Report. On the basis of this committee's report, the DMK Chief Minister M. Karunanidhi moved the State Autonomy Resolution on April 16, 1974, in the Assembly wherein it demanded: "Issue of directions to the States by the Union: Articles 256, 257, 339(2) and 344(6) empowering the Central government to issue direction to the State governments should be omitted. Federal government should have no such power to give directions." The Resolution also wanted omission of the powers under Articles 356, 357 and 365. Further, the use of powers under Articles 353(a) and 355 should be restricted only to times of war or external aggression.

In reply to the questionnaire issued by the Sarkaria Commission (1984) on Centre-State relations, DMK president Karunanidhi reiterated the demands contained in the Tamil Nadu Assembly Resolution of 1974 and said: "The Federal government should have no such power to give directions" (Page 719, Volume II, Sarkaria Commission Report).

Even where the Constitution vests power with the Union for issuing directions to a State government, the said power cannot be used indiscriminately beyond the purpose for which it has been provided. Eminent jurist H.M. Seervai observed: "For example, if the Union government purported to give directions about exercise of executive power in any field reserved for the State executive, which power does not collide with, or prejudice the exercise of the Union's executive power, such a direction will be invalid, and the imposition of President's Rule under Article 365 would be void for non-compliance with the condition precedent laid down in Article 365" (Para 5.26, Volume I, Fourth Edition).

In the past, when the Centre issued directions under Article 256, it found it hard to make the State governments comply with them fully. In September 1968, Central government employees went on strike to get relief for their grievances. The Union government promulgated an Ordinance declaring the strike illegal and issued a direction to all State governments to take necessary measures including arrest and prosecution of employees defying the Ordinance. The Communist government of E.M.S. Namboodiripad in Kerala decided not to carry out the instructions except where violence and obstructive picketing were involved. An infuriated Union Home Ministry reminded the Kerala government that it was obligatory for the State government to act according to the direction under Article 256. The State government replied that it would take necessary action in view of Article 256. During the strike period, the Kerala government arrested 233 persons and registered 207 cases of cognisable offence. Later, the employees were reinstated and the cases withdrawn. The Chief Minister declared in the Assembly that the members of his Cabinet made no secret of their opposition to the ordinance and support to the strike. The Home Ministry did not proceed further in the matter.

BY the time the two Central teams submitted their reports on the Tamil Nadu situation, there was realisation that the Centre could not act without taking cognisance of the factors uncongenial to its move. A report in The Hindu (July 3) said: "... responsible officials at the Centre were convinced that the conduct of the two Central Ministers on June 30 would not stand close scrutiny; one view was that by their conduct the two had put at stake the credibility and dignity of the Centre."

It is reported that the Home Ministry sent a communication to the Tamil Nadu government to ensure the functioning of the State administration "strictly in accordance with the provisions of the Constitution". There is no reference to the specific constitutional provision or provisions under which the Union government issued the 'warning'. The press had it that the Home Ministry communication "harshly notes that the police action against the two Union Ministers was tantamount to belittling the dignity and majesty of the Central government".

The prime concern of the Home Ministry appears to be to protect the "dignity and majesty of the Central government". In medieval times, the word 'majesty' referred to 'the greatness and glory of God'. When the times changed as monarchy assumed temporal power, it denoted "the dignity or greatness of a monarch". When monarchy gave way to republican systems of government, 'sovereignty' came to denote the superior authority and power of the people. In a democracy, ultimate sovereignty rests with the people, not with the government or those in power.

Prior to Independence, His Majesty's government of the British imperialism ruled India. Now, the officials of the Union government, by extolling the 'majesty' of the government, may perhaps be reviving the imperialistic legacy of 'His Majesty's government' in Delhi. It implies that officials of a vassal state should not try to 'belittle' the regal magnificence of the emperor and princely lords of Delhi. The States and their officials are expected to honour the dogmatic doctrine of monarchy - "King is the law and the King can do no wrong!"

In the Constituent Assembly, there was a troubled voice warning about the continuation of the legacy of British imperialism. Congress member Biswanath Das, who had been the Premier of Orissa in 1937, opposed strongly the vesting of important powers in the Governor who was to be appointed by the Central Cabinet. In the course of time, a party absolutely different from that in the Centre might be functioning in a province. What would then be the position?

He warned: "I have my bitter experience in this regard. I was the Prime Minister of a province and I know how the Governor of my province was out to break my party... In the provinces you are going to have democracy from toe to neck and autocracy at the head. Both these are bound to fail; you are inviting friction. I would have cited fully how the Governor who was an agent of British imperialism had all along been attempting to smash my party. What was being done by the Governor under the British imperialism may also be repeated by the party (in the Centre)" (Constituent Assembly Debates, May 31, 1949).

The apprehensions expressed in the Constituent Assembly have turned out to be too true and real in free India. The present-day 'King's Men' in Delhi are attempting to transform the rule of 'sovereign democratic republic' into an omnipotent rule of a majestic Central government.

The jurist Upendra Baxi has pointed out the revival of the colonial tradition of the British Governors and Residents. While denouncing the action of the law enforcement personnel in Tamil Nadu, he found "little to celebrate in what has followed". He put it pithily: "By recalling the State Governor they have already secured a de facto amendment, one that reduces to gibberish the constitutional prose concerning the dignity and autonomy of Governors and revives the colonial imagery of British Residents in the princely States under conditions of imperial paramountcy." (The Hindu, July 6, 2001).

IN the crossfire between the Centre and the Tamil Nadu government, the casualty appears to be the former Governor, M. Fathima Beevi. The Governor is the constitutional head of a State, which has a sovereignty of its own. When the Governor of Tamil Nadu was removed unceremoniously, the people of Tamil Nadu, the ultimate sovereign as far as the State is concerned, have the right to know why their Governor was compelled to resign. On this ground, the report of the Governor and all other reports of the Tamil Nadu Chief Secretary, the NDA team and the Home Ministry officials' team ought to be made public. Whenever the government moves a resolution for approval of President's Rule, it submits copies of the proclamation under Article 356 and the Governor's report to Parliament and thro-ugh Parliament to the people.

Even otherwise, Union Law Minister Arun Jaitley quoted some parts of the Governor's report and contended that the Governor had merely endorsed the report of the State government. It is an accepted rule in parliamentary manner of discussion that a person quoting from a document should make public the entire document. Reading some paragraphs out of context may not give a clear idea of the whole report. Let the people, the ultimate sovereign, make their judgment on the action of the Centre.

Apart from the parliamentary practices and the judicial decisions, involved here is 'political morality' under which the government should make its governance as transparent as possible. In its 1998 election manifesto, the Bharatiya Janata Party promised 'Right to Information': "The BJP believes in taking concrete steps to promote transparency in the functioning of government as a confidence-building measure. The working of a government should not only be transparent but should be perceived to be so. We, therefore, subscribe to the principle of sharing information about the government's work. The BJP will: (1) Enhance public access to information to the maximum extent feasible; (2) Review laws and regulations concerning confidentiality; and (3) Introduce social audit of development programmes, especially in rural areas."

After the 1998 elections, the BJP formed the government with the support of 16 other parties and presented a 'National Agenda for Governance'. This document started with the commitment: "(1) Our first commitment to the people is to give a stable, honest, transparent, and efficient government capable of accomplishing all-round development." This simple but firm commitment was repeated verbatim as the first item, 'Commitment for Good Governance', in the common manifesto of the NDA for the 1999 elections.

In the name of 'honest, transparent and efficient government', the public has a right to be made aware of the full contents of the reports of the Governor and all others regarding the recent developments in Tamil Nadu. It is to the credit of Fathima Beevi that she submitted her resignation without showing any bitterness or making unpleasant remarks against the action of the Central government. By her upright conduct, she lost the job; by its ignoble conduct the Union government lost its credibility. There is speculation that in appointing the next Governor to Tamil Nadu, the Centre may select a strong-minded and powerful person, conscious of his obligation to the Centre, to control the State government.

In its 1996 election manifesto, the BJP stated: "To make Centre-State relations more harmonious and in keeping with the spirit of a federal polity, the BJP will: (1) immediately implement the recommendations of the Sarkaria Commission, (2) consult State governments before appointing Governors and consider ways and means of preventing misuse of Raj Bhavans for political purposes." Is it too much to expect the Vajpayee government to follow the letter and spirit of this commitment?

THERE have been charges of bad governance against the State government, misbehaviour by officials, insult to the dignity and majesty of the Centre in the arrest of its Ministers, and so on. During the pendency of some cases in the courts, it is not desirable to go into the merits of charges in specific instances. In the administration of any government in a State, more so at the Centre, it is always easy to refer to individual acts of commission and omission that may not be termed 'good governance'.

When H.N. Kunzru asked whether under the Constitution the Central government could 'intervene in provincial affairs for the sake of good government of the provinces', Dr. Ambedkar gave an emphatic reply: "No, no. The Centre is not given that authority."

In the course of the judgment in the Bommaicase, Justice K. Ramaswamy observed: "Single or individual, act or acts of violation of the Constitution for good, bad or indifferent does not necessarily constitute failure of the constitutional machinery or characterise that a situation has arisen that the government of the State cannot be carried on in accordance with the provisions of the Constitution. The exercise of power under Article 356 should under no circumstance be for a political gain to the party in power in the Union government."

If there is bad governance at the Centre - oftentimes there has been - there is no authority except Parliament, by a vote of no-confidence, empowered to remove it. Thereafter, it is a political decision to be taken by the people through the ballot. So also in the case of a State government it should be left to the decision of the legislature and the electorate.

If a police officer has misbehaved in the course of his work, he should be punished for the lapse. If a legislator or a Minister misbehaves, who is there to take action against the offender? Rajasthan set a good example recently. At the Vigilance Committee meeting on July 1 in Ajmer, Babulal Singharia, MLA, made charges against a Superintendent of Police and then rushed towards the officer and slapped him. State Congress president Girija Vyas immediately suspended the MLA from the party and set up a three-member inquiry committee. He was suspended as an MLA. The government also lodged two first information reports (FIRs).

Even as norms in public life degenerate we get some heartening news here and there in favour of the majesty of the rule of law against the majesty of the legislators and the Ministers. "Be ye ever so high, the law is above you!"

Era Sezhiyan is a Senior Fellow of the Institute of Social Sciences, New Delhi, and a former Member of Parliament.