When a Dead Letter Chokes Democracy
It is obviously too tempting for any Central government to wield the axe of Article 356 to dismiss its adversaries in the states. Even the great democrat, Jawaharlal Nehru, was no exception. What should have been a dead letter of the Constitution became a potent weapon to murder democracy across the country when Nehru in 1959 dismissed the first elected Communist government of the country. Veteran journalist Inder Malhotra had blamed the newly-appointed Congress president Indira Gandhi, the right wing of the Congress and the then home minister, Govind Ballabh Pant, for forcing Nehru to invoke Article 356 against the EMS government in Kerala. But then, Nehru was a founding father and anything that he did would obviously become a precedent for much lesser leaders atop Raisina Hill.
While delivering the Bommai judgement in 1994, Justice PB Sawant extensively quoted Dr. BR Ambedkar to prove that the “Emergency Provisions” including Article 356 were not supposed to be wantonly used by the Central government. Such provisions existed in the 1935 Government of India Act, which governed the colonial state and were retained in the Constitution. When members of the Constituent Assembly objected to this colonial legacy, Ambedkar pacified them saying that, “the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter. If at all, they are brought into operation, I hope the President, who is endowed with all these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution.”
Well Ambedkar’s hopes were belied and what he thought would be a “dead letter” was used over 100 times to dismiss duly elected governments. It needs to be underscored that these Emergency Provisions were probably never used, but only misused. The Constitution is clear about the use of 356. It can only be invoked if a “situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution.” But so far, defections were engineered, rebellions were created and state governments were reduced to an artificial minority to create an illusion of a Constitutional crisis to get a hostile government sacked.
The recent Uttarakhand episode is some sort of a text book operation with all the standard operating procedures involved in invoking Article 356. But the practitioners of Article 356 keep forgetting the defining judgement in the Bommai case where all the usual ingredients of such a “Constitutional crisis” have been dealt with carefully. The usual ploy of the Centre is to create a situation wherein a state government is reduced to a minority. “The Constitution does not create an obligation that the political party forming the minority should necessarily have a majority in the legislature. Minority governments are not unknown. What is necessary is that the government should enjoy the confidence of the House… Secondly and more importantly, whether the council of ministers has lost the confidence of the House is not a matter to be determined by the governor or for that matter anywhere else except the floor of the House.”
The judgement is very clear about defectors too: Whatever may be his personal predilections, a legislator elected on the ticket of a party is bound to support that party in case of a division or vote of confidence in the House, unless he is prepared to forego his membership of the House.”