JAYALALITHAA"S TANTRUMS : ARTICLE 356 : DILEMMA OF BJP GOVERNMENT :1998

Vol. 15 :: No. 14 :: July 04 - July 17, 1998 

Who's afraid of Article 356?

More than any particular State government, it is the BJP-led Government at the Centre that finds its survival to be at stake because of the politics of Article 356.

SUKUMAR MURALIDHARAN
in New Delhi

THERE would seem to be nothing more futile than seeking enlightenment from ongoing controversies over the invocation of Article 356 of the Constitution to dismiss elected State governments well before their full term. They suggest little else than restive politicians of unbridled ambitions and acute insecurity trampling upon the foundations of constitutional rule.

Coalition government is known to induce a sense of restraint among the principals - a tacit recognition of the proprieties involved in mutual association. Harmony arises from a willingness to engage coalition partners in dialogue in an environment of sobriety and restraint.

Yet a paralysis of dialogue appears to be the most distinctive feature of the 100-day-old coalition Government at the Centre. The early clamour of competing demands from the coalition partners was met through the simple expedient of pressing the nuclear trigger, blasting the nation into a future of ethical confusion and multiplying strategic hazards. Dissent was silenced for a while, but did not take long to resurface.

ANU PUSHKARNA 
Prime Minister A.B. Vajpayee and Union Home Minister L.K. Advani with AIADMK general secretary Jayalalitha. Ironically, right now, Article 356, a knife placed in the hands of the Centre for use against State governments in claimed defence of the Constitution, seems to pose a more real threat to the survival of the BJP-led coalition at the Centre.

Once Pakistan established that far from attaining the exalted status of a nuclear weapon power, India had only managed to achieve a deadly strategic symmetry with a smaller and much weaker neighbour, the old litany of partisan demands from coalition partners was quick to emerge again. Although numbing in their triviality, transparent in their motivations and fraught with enormous dangers for the foundations of constitutional rule, these demands have already paralysed the task of governance and brought the Atal Behari Vajpayee Ministry perilously close to the brink

.

The mood was sombre when the Coordination Committee of the ruling coalition met for only the second time on June 27. Jayalalitha, leader of the All India Anna Dravida Munnetra Kazhagam, who has the presumptive loyalty of no fewer than 29 members in the Lok Sabha, stayed away. She had been engaged in a war of words with the Bharatiya Janata Party leadership over the preceding week, but had seemed to relent when Prime Minister Vajpayee spoke personally to her a few days ahead of the planned meeting of the Coordination Committee. It was obvious that Jayalalitha needed a decisive intervention from the Union Government that would at least partly assuage her political insecurities. After Vajpayee's telephonic conversation, it seemed a possibility that she would settle for a deal that did not go so far as to dismiss the elected State Government of Tamil Nadu a full three years ahead of its term.

Jayalalitha cited health grounds in crying off from participation in the Coordination Committee. But her disinclination to participate in any collective political body which fails to accord her the pre-eminence that she views as a unique prerogative was apparent. The failure of collective functioning in the ruling coalition bears ominous portents for its future. But its tendency to play along partly with the irrational demands of its alliance partners suggests more immediate dangers to constitutional well-being and political federalism.

S. ARNEJA
Leaders of the BJP and some of its alliance partners at the meeting of the Coordination Committee in New Delhi on June 27. Leaders of several allies of the BJP did not participate in the meeting.

OTHER constituents of the ruling coalition have receded to the background only because Jayalalitha has taken the forward position in demanding the use of Article 356. But the Samata Party in Bihar and the Trinamul Congress in West Bengal are deeply disaffected by their inability to use leverage at the Centre to get their way in the respective States. The Samata Party clearly believes that its internal cohesion can only be assured by the proximity of power at the State level.

At the Coordination Committee meeting, Samata Party representative Nitish Kumar did reiterate his demand that the Rabri Devi Government in Bihar be dismissed and fresh elections ordered. He was met with a reiteration of the BJP's position that Article 356 enshrined an emergency power which was not obviously invoked in the case at hand. Nitish Kumar did not press the point, but his sense of vulnerability is acute. His political constituency in Bihar is yet to partake of the fruits of power, and his bitter adversary, Laloo Prasad Yadav, has begun an assiduous courtship to win them over.

The Samata Party's constituency does not have a natural affinity with the BJP brand of politics, and its susceptibility to Laloo Prasad's appeal - particularly when it is buttressed by the apparatus of power in the State - cannot be underestimated. For the Samata Party, removing Laloo Prasad's proxy Government in Bihar is clearly a matter of self-preservation. Till Jayalalitha queered the pitch for them, they seemed to have a receptive audience within the BJP. No less a leader than Vajpayee had repeatedly during the recent election campaign referred to Bihar as an appropriate case for the exercise of Article 356. But with Jayalalitha having reduced the emergency power of 356 to little more than an instrument of political vendetta, the Samata Party's case also lost much of its credibility.

SHANKER CHAKRAVARTY
Samata Party leader and Railway Minister Nitish Kumar. The partisan demands of the BJP's allies for the dismissal of State governments are fraught with enormous dangers for the foundations of constitutional rule.

Jayalalitha and her allies won overwhelmingly in Tamil Nadu in the last Lok Sabha elections. The Samata Party in alliance with the BJP won fairly substantially in Bihar. The Trinamul Congress, which performed modestly in West Bengal, completes the trio of Article 356 militants which is making things awkward for the Vajpayee Ministry.

Trinamul Congress leader Mamata Banerjee failed to work out an acceptable modus vivendi with the BJP for the elections to local bodies in West Bengal in May. Any hopes that she may have entertained of breaking into the ruling Left Front's bastions of rural strength were quickly dispelled. 

This impelled her to raise the stakes and demand the use of Article 356 in West Bengal. The underlying intent is obviously to simulate the conditions of repression that prevailed in 1972, which was the last occasion when the Congress party won an election in West Bengal.

IT is tempting to read deep democratic scruple in the BJP's refusal to entertain the demands of its recalcitrant allies. But perhaps the truth is that it is deterred by the various practical difficulties involved. Any precipitate action using Article 356 would unsettle the loyalty of various partners of the ruling coalition, such as the Akali Dal in Punjab and the Telugu Desam Party in Andhra Pradesh. Once the debits are added up, there is unlikely to be much accruing to the credit of the BJP from the utilisation of the draconian powers under Article 356.

SUSHANTA PATRONOBISH
Trinamul Congress leader Mamata Banerjee. Her party is pressing for some form of Central action against the Left Front Government in West Bengal, based on exaggerated charges relating to the law and order situation.

A further factor is the virtual impossibility of getting a proclamation of President's Rule in any State approved by both Houses of Parliament within the stipulated period of two months. Passions have always run high over Article 356, but the Congress had, all through its years of comfortable ascendancy, no reason to believe that Parliament would actually exercise a power of scrutiny. In today's more fragmented political milieu, that can no longer be taken for granted. A certain degree of zeal in the exercise of parliamentary scrutiny, especially in a cause with such deep partisan resonances, is an integral part of current realities.

A peculiar feature of the present situation, however, is that any proclamation of President's Rule may not even reach the stage of parliamentary scrutiny. Since the tumultuous events in Uttar Pradesh in February, the possibility of the higher judiciary imposing an interim injunction on the dismissal and appointment of Ministries has become a factor to reckon with. That followed a grossly mala fide exercise of authority by the Governor of the State, Romesh Bhandari, in dismissing the Kalyan Singh Government on the strength of his subjective satisfaction that it had lost its legislative majority. This was under the scope of Articles 163 and 164 of the Constitution, which accord the Governor a limited power of "discretion" in the appointment of a Ministry.

The Supreme Court laid down in S.R. Bommai versus the Union of India that any proclamation under Article 356 is subject to judicial review. The argument that the imposition of President's Rule belongs to a special category of emergency powers that cannot be the subject matter of litigation has long since been thrown out of court. 

Jayalalitha may have done her political adversaries in Tamil Nadu the greatest favour by announcing that the dismissal of the Tamil Nadu Government was an integral part of an agreement that she had struck with the BJP prior to the Lok Sabha elections. This makes any invocation of Article 356 in the foreseeable future a highly colourable exercise of power for reasons that have no legitimacy in the constitutional scheme. Jayalalitha has, unwittingly or otherwise, already laid sound foundations for the judicial quashing of the decision she seeks with such fervour from the Central Government.

CALCULATIONS of realpolitik are obviously a decisive element in the BJP Government's current posture of reticence as far as Article 356 is concerned. Moreover, citing law and order as a basis for dismissing elected State governments would cut the BJP's Ministries in Uttar Pradesh and Rajasthan very close to the bone. It would also unsettle the Andhra Pradesh Government, and leave Farooq Abdullah in Jammu and Kashmir with little reason to remain in office.

T.A. HAFEEZ

In April 1989, Karnataka Chief Minister S.R. Bommai (left) presents Governor P. Venkatasubbiah a copy of the resolution passed by the Janata Dal Legislature Party requesting the Governor to give him an opportunity to test his majority in the Assembly. He was denied the opportunity and his Government was dismissed, and eventually the Supreme Court laid down in the Bommai case that any proclamation under Article 356 is subject to judicial review.

Since the Supreme Court ruling in Bommai, further judicial interventions have been rare. This is partly because there have been few cases of a State Governor or the Central Government invoking the power of dismissal. The events in Uttar Pradesh in November 1997, and then again in February 1998, may have turned the tide. Arbitrary exercises of power can now be challenged in higher judicial forums and if a reaffirmation of the Bommai findings were to be sought, the BJP governments in Uttar Pradesh and Rajasthan would be extremely vulnerable to stricture.

It is one of the fundamental principles of Bommai that secularism, like the process of judicial review, is part of the basic structure of the Constitution. The recent manoeuvres of the BJP affiliates - notably the Vishwa Hindu Parishad - over the Ayodhya controversy perhaps invite constitutional action on this count. Legal scholars are divided on the practical consequences of the Supreme Court's finding on secularism. Rajeev Dhavan, senior advocate in the Supreme Court, feels, for instance, that the formulation is much too vague for any functional purpose.

B.K. Chandrasekhar, Professor at the National Law School of India, Bangalore, has a different interpretation. "The coercive power of Article 356," he says, "cannot be allowed to hack away at the substance of the federal arrangement." Yet, its abolition may not quite be warranted on the basis of current experience. One of the instances that might warrant the application of the Article would be where a State government works against secularism or some other basic feature of the Constitution. "In the case of the present Uttar Pradesh Government," says Chandrasekhar, "there may be a good case to examine whether any part of their activities would amount to promoting anti-secular activity, such as their promises and indirect help on the construction of the Ram temple at Ayodhya when the judiciary is yet to make a pronouncement on the dispute."

THESE border-line transgressions are compounded by the BJP's recently stated intention to legislate an outcome of its choice to the Ayodhya dispute if the judicial process fails to deliver one. This effort to play fast and loose with fundamental principles will almost certainly invite scrutiny on grounds of the preservation of the basic structure of the Constitution.

Clearly, a party that has embarked upon a perilous journey along the main fault-lines of the constitutional scheme has no reason to invite further trouble for itself by overturning the popular will in a number of major States of the Union. To say that the State governments in Tamil Nadu and Bihar have lost the popular mandate will have little legitimacy in a constitutional scheme that prescribes secure five-year terms for all elected governments. Moreover, it should in a strictly federal interpretation lead to the logical conclusion that all Members of Parliament from a State should quit in the event that Assembly elections in that State turn out adverse for the party they belong to.

Coalition rule has necessitated a culture of mutual respect and accommodation among political parties. Inured to the confrontational mode and heady on the electoral rewards that the Ayodhya campaign brought it, the BJP has had little inclination to develop this skill. Buffeted about by the conflicting priorities of its partners, it finds itself devoid of the latitude to deliver on its promise of good governance. Article 356, as it was enacted, enshrined the final responsibility of the Union Government for the preservation of peace, security and the rule of law in the entire country. As it was used, the constitutional provision became a coercive power that could be used to silence dissent and opposition. Today, with a party in power that has repeatedly expressed its disdain for the rule of law, the inherent hazards to the States from Article 356 seem to have receded. Rather, it is the Central Government itself that stands exposed and vulnerable to baneful legacy and the inherent iniquities of this constitutional provision.

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