Majority gives no immunity

There are two principal arguments against giving the citizens of Bihar a well-deserved respite from the excesses of Laloo Prasad Yadav and his merry men. Since no sensible politician wants to be seen backing the Rashtriya Janata Dal regime, the questions are couched in suitably high-flown form, seemingly dealing with fundamental constitutional issues.

First, how can one dismiss a government that enjoys a proven majority in the legislature to which it is responsible? Second, isn8217;t it an incentive to defection if the House is kept in suspended animation?

The obvious implication is that the Vajpayee ministry is about to commit both mistakes if it tries to wield the broom in Patna. If we are coming down to specifics, the answer is that the merits of any such actions shall be discussed at various fora, at least three of them.

First, the President shall take his own time to consider the repercussions of dismissing the Bihar ministry. Second, as Laloo Prasad Yadav has already promised, the issue will be taken to the judiciary if Rashtrapati Bhavan gives the green signal. Finally, such a step must be ratified by Parliament within 60 days.

I am sure that the implications, the legality, and the ethics of imposing President8217;s rule in Bihar shall be considered carefully at each step. But the questions raised are of a constitutional nature, far removed from the specific instance of Bihar. So let us consider them in the same academic spirit.

First, let us begin by throwing out some rubbish which has been lying around too long. Article 356 of the Constitution is not, repeat not, an instrument to prise a minority government out of office. In fact, such an interpretation makes no sense at all if you think about it. If a government can8217;t muster the numbers it falls sooner or later, Article 356 or no Article 356.

The men and women who framed the Constitution never envisaged anything as grotesque as a chief minister who stayed on if he couldn8217;t command a majority in the assembly. Nor did they ever dream of a chief minister who refuses to face the House. Nor one who bribes or otherwise manipulates his way into a majority.

So if Article 356 is not about counting noses, what is it about? If you read what the authors of the Constitution said and wrote, the purpose of this law is very clear. It is meant to be used when the constitutional machinery breaks down.

For the record, it was this that was alleged when a Congress government dismissed the E.M.S. Namboodiripad ministry in 1959. Pandit Nehru never claimed that the Communist chief minister had lost the support of the Kerala Assembly. Indira Gandhi, then president of the Congress, never said anything about playing a numbers game and nor did Ramakrishna Rao, the governor of Kerala.

Nor did Pandit Nehru8217;s grandson make the stupid claim that M. Karunanidhi had lost the support of the Tamil Nadu Assembly in 1991. Yet the DMK government was dismissed by the Chandra Shekhar ministry at Rajiv Gan-dhi8217;s bidding on the ground that its continuance in office threatened national security.

These instances of Article 356 proved one point 8212; that a majority in the legislature does not confer blanket immunity from dismissal. A regime cannot preside over extortion, rape, murder, and grand larceny, and then thumb its nose at Delhi, saying, 8220;You can8217;t touch us, we have a clear majority in the Assembly!8221;

Article 356 was put into the Constitution precisely because the authors of that work anticipated a situation where standard parliamentary procedures would be turned on themselves. It is a weapon of last resort and meant to be used as such.

To digress a little, how did Article 356 come to be reduced to counting heads in the assembly? Simple, for the better part of fifty years it became the favourite excuse of Congress regimes in Delhi to oust unfriendly ministries in the states. The much quoted, much misunderstood Bommai case ruling by the Supreme Court was intended to bar that excuse.

Their Lordships certainly didn8217;t say that Article 356 could never be used if a ministry succeeded in proving a majority. All that the Bommai case judgment says is that an opportunity must be given to the ministry concerned if it is alleged to have lost its support in the House.

To come down to specifics for a moment, that is what Romesh Bhandari spectacularly failed to do in February this year when he summarily dismissed the Kalyan Singh ministry. But then he really didn8217;t have any other excuse to offer for imposing Jagdambika Pal on Uttar Pradesh.

What of the second argument, that it is essentially immoral to keep an assembly in suspended animation because it might encourage defections? I agree it isn8217;t a particularly desirable situation; ironically, it has become almost inevitable in the wake of the Bommai judgment.

What if Parliament refuses to endorse the imposition of President8217;s rule or that such a decision is struck down by the courts? There has to be a remedy in such an instance. I don8217;t say that the House should be in a coma indefinitely, merely that Parliament and the courts should be given a reasonable amount of time to correct the injustice, if any.

The situation in Bihar may or may not be a fit case to apply Article 356. But let us not muddy the waters with talk of majorities and minorities. A vote of confidence is not a licence for misrule.