No Centre ground in UP

The Bommai judgment is clear. Majorities must be proved by a floor test

President8217;s rule is not a political ploy. It is meant to be used upon a breakdown of constitutional machinery when there is no other choice in the matter. The present demand for imposition of President8217;s rule in Uttar Pradesh is instigated as an electoral tactic for political reasons 8212; to exploit the tension between the governor and Mulayam Singh Yadav and to take advantage of a Congress government at the Centre.

First the facts. In August 2003, Mayawati abandoned the 18-month UP government to hazard plunging UP into an expensive election. Had she succeeded, she would have remained the caretaker chief minister until the fresh elections. MLAs from the BSP defected, astonished at their leader8217;s decision. Mulayam Singh proved his majority in 2003 and again in 2007. Elections are round the corner. It seems incongruous to ask Mulayam Singh to prove his majority again. It is well-settled that even if a minority government fails in a confidence vote and elections are to be held immediately thereafter, there is no question of President8217;s rule. The head of the minority government must continue as caretaker. The same rules that apply at the Centre must apply to the states. When minority governments fell at the Centre in 1979, 1991 and 1998, the respective governments continued as caretaker. Why should the rule be any different in the states simply because there is a provision for President8217;s rule? The ground rules of democracy do not change because of political expediency.

Misusing the instrument of President8217;s rule has been a Congress sport. Any excuse was good enough 8212; law and order Kerala, 1959, corruption Tamil Nadu in 1976 and Manipur in 1979, Babri Masjid Himachal in 1992. To this, the NDA added misrule Bihar in 1998, which was withdrawn. In the present UP controversy, all grounds are being urged 8212; law and order, corruption, immorality and loss of majority. If ultimately, the people have to decide, they will do so by March 2007. Thus, the endgame in the UP crisis is to get rid of Mulayam as caretaker by some means or the other. No constitutional principles are involved other than opportunism. The Bommai judgment 1993 is clear. These issues are 8220;not a matter to be determined by the governor or for that matter anywhere else except the floor of the House8221;. In the UP case, even if Mulayam lost the confidence vote, he would still be entitled to continue as caretaker.

The new demand for President8217;s rule is based on the Supreme Court decision in the UP defection case. Justice P.K. Balasubramanyam8217;s judgment in that case is unsatisfactory on many grounds. A lot gets lost when judgments are written in a hurry. The Constitution cannot be interpreted like the Civil Procedure Code. Anti-defection law does not silence dissent but insists that it take place collectively. In the UP case, a one-third split was alleged to have taken place on August 26, 2003; 13 BSP MLAs met the governor to ask him to continue the assembly. Mulayam won the confidence vote on September 8, 2003. On September 6, 2003, BSP did not question the split of August 26, 2003, but only demanded that each of the 37 MLAs confirm their signatures before the speaker, which they did. Almost two years later, the BSP questioned the split on 26th August. Three and a half years later, the Supreme Court created a new doctrine of the law of splits and usurped the jurisdiction of the speaker to decide factual evidence itself. On this basis, 13 MLAs were disqualified by the Supreme Court. The matter should have been referred to the speaker.

Kapil Sibal of the Congress party and others insist that the remaining 24 MLAs were also disqualified. This claim is contrary to the judgment itself, which permits disqualification only if a petition is filed. While a petition was filed against the 13 MLAs, none was filed against the 24 MLAs. The 24 MLAs cannot be disqualified. In any event, the Supreme Court8217;s view that the 24 MLAs were not able to prove the split on August 26, 2003, is totally conjecture, especially when the 37 MLAs personally verified their case before the speaker to the satisfaction of their accusers.

What the judgment does is lay down a new doctrine on proof of a split in the original political party. From 1987 to 2006 it was settled practice that if one-third of the MLAs or MPs of a party split, there was a split in the original party, since prominent legislators of the legislature had declared their intention to leave the party. Having unsettled settled practice, the court should have applied it prospectively. Retrospectively applied, it will unsettle virtually every defection in the last 20 years. For the Supreme Court to assume the role of the speaker was unwarranted.

Morally, it was the BSP MLAs who committed a constitutional immorality. It was Mayawati who wanted to dissolve the legislature which had run for only 18 months to precipitate the crisis. The Supreme Court only disqualified 13 MLAs. It did not damn the Mulayam government any more than Narasimha Rao8217;s government, which won a vote on a bribe. Disqualifying MLAs does not disqualify governments who prove their majority. Democratic morality lies in the floor test. President8217;s rule is no answer. In this situation, two practices apply. First, President8217;s rule is not meant to decide moral and political skirmishes between parties about to fight elections. Second, even if the party in power is defeated in the House at the time elections are called, it must continue as caretaker. Congress rule from New Delhi is hardly the solution.

The writer is a senior advocate