When a Dead Let­ter Chokes Democ­racy

The Economic Times - - Pure Politics - RAJESH RA­MACHAN­DRAN

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.”

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