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Showing posts with label Article 356 of Indian Constitution. Show all posts
Showing posts with label Article 356 of Indian Constitution. Show all posts

Sunday, 6 March 2016

A sinister pattern underway

' Everything is projected through the lens of a narrow Hindutva definition of nationalism, leaving no room for tolerance and pluralism.'

The controlled voice of Ravish Kumar on a blackened screen and his stark report on NDTV India on February 19 made for a powerful statement. It brought back memories of June 28, 1975, 41 years ago, when The Indian Express published a blank editorial, making its point stronger than words could have. The two statements are distanced in time and differ in context. But the similarities stare us in the face — both are strong symbolic protests against the assault on the principles of the Indian Constitution.

Attacking the inconvenient

No party can afford to express its lack of faith in the Constitution — not even the Hindutva-vadi Bharatiya Janata Party (BJP). The art of doublespeak is a prerequisite of arbitrary power, and the BJP is using it in full measure. The pretentious statements made by the BJP on November 26, 2015 (Constitution Day) extolling the virtues of the Constitution ring hollow when measured against the acts of the party and its cadres on the ground. Issues such as “beef-eating”, “love jihad”, “ghar vapsi” are ratcheted up to a high emotional pitch, as a means to circumscribe cultural spaces, linking these issues to ‘patriotism’. Unruly elements unleash violence, and the ruling party ensures impunity for the perpetrators. This collaboration between the government and the ruling party’s cadres is clearly visible today from Delhi to rural Rajasthan, where the Mazdoor Kisan Shakti Sangathan (MKSS) works.

Everything is projected through the lens of a narrow Hindutva definition of nationalism, leaving no room for tolerance and pluralism. Questioning the death penalty is attacked as anti-national; studying in Jawaharlal Nehru University (JNU) is anti-national; being a human rights worker in Chhattisgarh is anti-national; the ‘right to report’ is anti-national; and asking for transparency and accountability is anti-national. The propagators of this nationalism see the Constitution as an uncomfortable impediment that must be challenged by undermining its institutions and targeting its defenders. This deliberate orchestration must help us understand that it is not just the inconvenient (‘sickular’) person or collective being intimidated; the Constitution is under sinister attack and our secular democracy is at stake.

Hatred in the hinterland

It is sometimes hard to understand where the attack will originate from — and why. On January 16, a yatra for accountability organised by the Suchna Evum Rozgar Ka Adhikar Abhiyan — a network of social sector organisations travelling across Rajasthan — was unexpectedly and inexplicably attacked by a violent mob in the small town of Aklera. The 30-odd members of the mob who beat men and women taking part in the yatra with lathis and bricks were led by Kanwar Lal Meena, the current BJP MLA of Manohar Thana (Jhalawar district). The yatra focussed on access to development and dignity for poor and marginalised communities. It is difficult to understand or explain why an accountability yatra of this nature should provoke such an attack.

It is becoming increasingly clear that anyone who dares to raise issues of freedom, justice and equality is seen as a threat. For the BJP, it appears as if democracy is becoming a problem, and the Constitution is ideologically inconvenient. In Hyderabad, Rohith Vemula strongly linked issues of caste with democracy through the Ambedkar Students Union. In New Delhi, Kanhaiya Kumar raised issues of class and poverty through the All India Students’ Federation. If you happen to be from a background that explodes the myth of social harmony and economic opportunity, your existence is inconvenient. The demand for dignity as established by the guarantees in the Constitution is deemed anti-government. Through contrived and planned campaigns, the BJP is doing its best to establish that being critical of its government is tantamount to being anti-national.

Aklera is accustomed to witnessing ‘engineered riots’ (pre-planned assaults unleashed on vulnerable minority communities). A cell-phone recording of the January 16 attack documents a local bystander explaining the attack to another by saying “they must be Muslims from outside”! The criminal record of the MLA who led the attack — accessed through RTIs filed — reveals more than 18 cases registered against him, including leading mobs into mosques, people’s homes, smashing property, forging documents and desecrating religious texts of the minorities. He has even been charged with holding a loaded pistol to the Sub-Divisional Magistrate’s head in 2006 while demanding the reversal of an election result. The MLA’s party membership and Hindutva politics explains his impunity. Manohar Thana is located in the Chief Minister’s home district, and her silence raises many questions.

Painted iron signboards in Manohar Thana similar to those found in the Narendra Modi-ruled Gujarat of 2002 proclaim: “Hindu Rashtra mein aapka swagat hai (Welcome to the Hindu nation)”. The first and obvious target is religious minorities, but Hindutva’s real objective is to destroy any opposition.

Reclaiming the Constitution

The dream of India was born with the clearly articulated concept of freedom — of speech, worship, assembly, and freedom from discrimination, want, inequality, and injustice. The modus operandi of using everything including state power to crush and intimidate any action that may arise from a different world view is the death knell of democracy. Before another hollow celebration of Constitution Day this year, the ruling party must be held to account for the unjustified acts of its cadres supported by the state —in the University of Hyderabad, in JNU, in the Patiala House courts, in Jagdalpur, in Aklera, and in places across the country. Nationhood in India is inextricably connected to the uncompromising commitment of the state to secularism and its constitutional principles. When these orchestrated acts of violence and intimidation are implicitly supported by a partisan state, the very fabric of the nation is undermined.

In Aklera, Mr. Meena destroyed the camera used to shoot the yatra. However, videos shot on smartphones, now with the police, show him leading a gang and thrashing prominent MKSS activist Shankar Singh with a lathi. And yet the MLA has not been arrested. Even the BJP MLA from Delhi, O.P. Sharma, and many of the lawyers who beat up journalists and others in Patiala House continue to enjoy the implicit support of the government. The happenings in the Patiala House courts demonstrate that neither the law nor proof, not even the Supreme Court matters when you have the state on your side.

The responsibility vests in the government and the ruling party and they are accountable for acts of omission and commission. As for the rest of us, the time has come to understand that the freedom won so hard, and with so much faith, is under threat unless we collectively protect our constitutional rights. We need to understand that those who struggle in order to establish constitutional principles of equality and justice are the architects and builders of a free, strong, and democratic India.

Friday, 29 January 2016

More than a numbers game: moving beyond the floor test

“Arunachal Pradesh has now demonstrated that the ‘dead letter’ — what Ambedkar believed would be Article 356 of the Constitution in reality — is quite alive and kicking Chief Ministers out of power.” Picture shows activists of the Arunachal Pradesh Youth Congress demanding the removal of the State's Governor.— Photo: By Special Arrangement

Dr. B.R. Ambedkar believed that Article 356 of the Constitution, which provides for imposition of President’s rule in the States and dissolution of State Assemblies, would, in reality, be only a ‘dead letter’. However, by the time a Constitution Bench ruled in the S.R. Bommai v. Union of India case (1994) that a presidential proclamation under Article 356 is subject to judicial review, that it is not an absolute but a conditional power, and that no Assembly can be dissolved before both Houses of Parliament ratify the proclamation, the provision originally meant to be used sparingly had been invoked over 90 times. After the verdict, however, one would have thought that the provision has been somewhat neutralised. That the casual resort to imposition of President’s rule or dissolution of State Assemblies at the whim of the ruling party at the Centre has ended and the potential for further misuse removed. Arunachal Pradesh has now demonstrated that the ‘dead letter’ is quite alive and kicking Chief Ministers out of power.

Many grounds have been cited in support of bringing the sensitive border State under Central rule: from “breakdown of the constitutional machinery” to “collapse of law and order” to other sinister charges such as a threat to the life and security of the Governor and alleged links between the Chief Minister and an extremist group. The context, of course, is something that the Congress is familiar with, as it had used similar circumstances to topple many a regime in the past: dissidence within the ruling party and the Opposition colluding with the rebels to bring down the regime. In Arunachal Pradesh, the party is at the receiving end. It had 47 MLAs in a 60-member House, and the BJP 11, and yet its Chief Minister has been deposed by dissidents acting in concert with the Opposition and helped by the Governor.

Spotlight on the Governor

The manner in which Arunachal Pradesh was brought under President’s rule highlights a significant strand of political behaviour in the country. Even constitutional authorities believe less in law and propriety than in their ability to work around them to achieve their desired results. And one is not merely talking about Governor J.P. Rajkhowa while saying this. It is equally applicable to the deposed Chief Minister, Nabam Tuki. It is quite obvious that the Governor was more concerned about removing the Speaker and installing a rival faction leader as Chief Minister than giving an opportunity to Mr. Tuki to demonstrate his majority on the floor of the House. As for Mr. Tuki, he appears to have done nothing to ascertain his support within the Congress legislature party in the face of brewing dissidence within its ranks. Nor did he convene the Assembly until it became a constitutional necessity as it was nearly six months since the House had last met.

The Gauhati High Court has categorically ruled in favour of the Governor’s decisions in the present crisis. It has upheld his power to summon or prorogue the Assembly under Article 174(1) and his power to send messages, even fixing a specific item on the agenda of the legislature, under Article 175(2). The court saw nothing wrong in the Governor advancing a sitting of the House from January 14, 2016 to December 16, 2015. Nor did it find anything illegal in his specifying that a motion to remove the Speaker should be taken up immediately after the House convenes. In effect, a controversial ‘sitting’ of 33 members of the Assembly in a makeshift venue has been upheld by the high court. It is somewhat ironical that at a time when even a presidential proclamation is subject to judicial review, case law on the role of the Governor still favours gubernatorial privilege and discretion.

A crucial question before the Supreme Court is whether the Governor can, in his discretion and without the aid and advice of the Council of Ministers, summon the legislature or advance a scheduled sitting; and whether he can fix the agenda for such a session on his own. Interestingly, the Gauhati High Court extensively quotes from a Madras High Court Full Bench verdict of 1973 favouring the Governor’s action in somewhat similar circumstances in the Tamil Nadu Assembly. There, too, the ruling party had split, the Speaker and the Deputy Speaker were in different factions, and the dissidents wanted to remove the Chief Minister through a censure motion. However, in the Tamil Nadu precedent — where also there was a parallel ‘Assembly session’ — the Governor was acting on the advice of the ministry of M. Karunanidhi while sending a message to the House that it should first take up a motion to remove the Speaker, whose loyalty lay with the dissidents. On the crucial question of the Governor’s discretion, the high courts have gone by the principle in Article 163: that the question whether any advice, and if so what advice, had been given to the Governor shall not be gone into by any court; and when a question arises whether the matter on which the Governor had acted was actually one on which he can use his discretion, the decision made by the Governor in his discretion will be final.

Options ahead of the floor test

The validity of President’s rule in Arunachal Pradesh will be decided on established constitutional principles, but the time may have come to go beyond even the floor test requirement in ascertaining whether a particular regime commands a majority. Just as unscrupulous defections are legally discouraged, opportunistic cooperation between ruling party dissidents and Opposition legislators just to bring down a Chief Minister may also have to be prevented. This can be achieved if the Governor asks the Chief Minister to submit proof of his support within his own legislature party or alliance partners before ordering a floor test. In the event of some factions withdrawing their support to the government, the Governor can always turn them away and ask them to move a no-confidence motion instead of coming to him. If there is any attempt by the Speaker or the Chief Minister to block such a motion, or if the Assembly is not convened, the Governor should not hesitate to write to the party’s leadership seeking proof of its legislature party still having only one leader. This may force the hand of parties that seek to avoid convening legislature party meetings and hoping that in the Assembly, a floor test can be managed by a partisan Speaker and by selective expulsions to change the composition of the House. In other words, those arguing for the primacy of the floor test will need to have their house in order before the matter is decided in the legislature.

An incumbent government’s reluctance to follow this process may lead to the Governor recommending that the Centre give a suitable direction to the State. For, under Article 365, it shall be lawful for the President to then hold that because of any non-compliance with the direction, the State can no more be run in accordance with the Constitution. This sequence — proof of subsisting support within the ruling party, a floor test, and in the event of these efforts being blocked, a formal direction from the Union, followed by a determination on the constitutionality of the continuance of the regime — may address concerns of partisan behaviour.

Even in times when the incumbent regime swears by “co-operative federalism”, Raj Bhavans are seen as sinecures for friends of the ruling party and its formerly active members and associates. New norms will have to guide both the appointment of Governors and their functioning. The recommendations of the Sarkaria Commission on Centre-State relations are readily available with regard to choosing the occupants of Raj Bhavan.

It had said a Governor should be someone eminent in some walk of life, and should not be one “who has taken too great a part in politics generally, and particularly in the recent past”. Only a few eminent personalities outside the domain of politics and civil or military service have been made Governors. As long as parties pursue their own political interests rather than abide by the Constitution, it will be left to the courts to uphold federal norms.

More than a numbers game: moving beyond the floor test

“Arunachal Pradesh has now demonstrated that the ‘dead letter’ — what Ambedkar believed would be Article 356 of the Constitution in reality — is quite alive and kicking Chief Ministers out of power.” Picture shows activists of the Arunachal Pradesh Youth Congress demanding the removal of the State's Governor.— Photo: By Special Arrangement

Dr. B.R. Ambedkar believed that Article 356 of the Constitution, which provides for imposition of President’s rule in the States and dissolution of State Assemblies, would, in reality, be only a ‘dead letter’. However, by the time a Constitution Bench ruled in the S.R. Bommai v. Union of India case (1994) that a presidential proclamation under Article 356 is subject to judicial review, that it is not an absolute but a conditional power, and that no Assembly can be dissolved before both Houses of Parliament ratify the proclamation, the provision originally meant to be used sparingly had been invoked over 90 times. After the verdict, however, one would have thought that the provision has been somewhat neutralised. That the casual resort to imposition of President’s rule or dissolution of State Assemblies at the whim of the ruling party at the Center has ended and the potential for further misuse removed. Arunachal Pradesh has now demonstrated that the ‘dead letter’ is quite alive and kicking Chief Ministers out of power.

Many grounds have been cited in support of bringing the sensitive border State under Central rule: from “breakdown of the constitutional machinery” to “collapse of law and order” to other sinister charges such as a threat to the life and security of the Governor and alleged links between the Chief Minister and an extremist group. The context, of course, is something that the Congress is familiar with, as it had used similar circumstances to topple many a regime in the past: dissidence within the ruling party and the Opposition colluding with the rebels to bring down the regime. In Arunachal Pradesh, the party is at the receiving end. It had 47 MLAs in a 60-member House, and the BJP 11, and yet its Chief Minister has been deposed by dissidents acting in concert with the Opposition and helped by the Governor.

Spotlight on the Governor

The manner in which Arunachal Pradesh was brought under President’s rule highlights a significant strand of political behaviour in the country. Even constitutional authorities believe less in law and propriety than in their ability to work around them to achieve their desired results. And one is not merely talking about Governor J.P. Rajkhowa while saying this. It is equally applicable to the deposed Chief Minister, Nabam Tuki. It is quite obvious that the Governor was more concerned about removing the Speaker and installing a rival faction leader as Chief Minister than giving an opportunity to Mr. Tuki to demonstrate his majority on the floor of the House. As for Mr. Tuki, he appears to have done nothing to ascertain his support within the Congress legislature party in the face of brewing dissidence within its ranks. Nor did he convene the Assembly until it became a constitutional necessity as it was nearly six months since the House had last met.

The Gauhati High Court has categorically ruled in favor of the Governor’s decisions in the present crisis. It has upheld his power to summon or prorogue the Assembly under Article 174(1) and his power to send messages, even fixing a specific item on the agenda of the legislature, under Article 175(2). The court saw nothing wrong in the Governor advancing a sitting of the House from January 14, 2016 to December 16, 2015. Nor did it find anything illegal in his specifying that a motion to remove the Speaker should be taken up immediately after the House convenes. In effect, a controversial ‘sitting’ of 33 members of the Assembly in a makeshift venue has been upheld by the high court. It is somewhat ironical that at a time when even a presidential proclamation is subject to judicial review, case law on the role of the Governor still favors gubernatorial privilege and discretion.

A crucial question before the Supreme Court is whether the Governor can, in his discretion and without the aid and advice of the Council of Ministers, summon the legislature or advance a scheduled sitting; and whether he can fix the agenda for such a session on his own. Interestingly, the Gauhati High Court extensively quotes from a Madras High Court Full Bench verdict of 1973 favouring the Governor’s action in somewhat similar circumstances in the Tamil Nadu Assembly. There, too, the ruling party had split, the Speaker and the Deputy Speaker were in different factions, and the dissidents wanted to remove the Chief Minister through a censure motion. However, in the Tamil Nadu precedent — where also there was a parallel ‘Assembly session’ — the Governor was acting on the advice of the ministry of M. Karunanidhi while sending a message to the House that it should first take up a motion to remove the Speaker, whose loyalty lay with the dissidents. On the crucial question of the Governor’s discretion, the high courts have gone by the principle in Article 163: that the question whether any advice, and if so what advice, had been given to the Governor shall not be gone into by any court; and when a question arises whether the matter on which the Governor had acted was actually one on which he can use his discretion, the decision made by the Governor in his discretion will be final.

Options ahead of the floor test

The validity of President’s rule in Arunachal Pradesh will be decided on established constitutional principles, but the time may have come to go beyond even the floor test requirement in ascertaining whether a particular regime commands a majority. Just as unscrupulous defections are legally discouraged, opportunistic cooperation between ruling party dissidents and Opposition legislators just to bring down a Chief Minister may also have to be prevented. This can be achieved if the Governor asks the Chief Minister to submit proof of his support within his own legislature party or alliance partners before ordering a floor test. In the event of some factions withdrawing their support to the government, the Governor can always turn them away and ask them to move a no-confidence motion instead of coming to him. If there is any attempt by the Speaker or the Chief Minister to block such a motion, or if the Assembly is not convened, the Governor should not hesitate to write to the party’s leadership seeking proof of its legislature party still having only one leader. This may force the hand of parties that seek to avoid convening legislature party meetings and hoping that in the Assembly, a floor test can be managed by a partisan Speaker and by selective expulsions to change the composition of the House. In other words, those arguing for the primacy of the floor test will need to have their house in order before the matter is decided in the legislature.

An incumbent government’s reluctance to follow this process may lead to the Governor recommending that the Centre give a suitable direction to the State. For, under Article 365, it shall be lawful for the President to then hold that because of any non-compliance with the direction, the State can no more be run in accordance with the Constitution. This sequence — proof of subsisting support within the ruling party, a floor test, and in the event of these efforts being blocked, a formal direction from the Union, followed by a determination on the constitutionality of the continuance of the regime — may address concerns of partisan behaviour.

Even in times when the incumbent regime swears by “co-operative federalism”, Raj Bhavans are seen as sinecures for friends of the ruling party and its formerly active members and associates. New norms will have to guide both the appointment of Governors and their functioning. The recommendations of the Sarkaria Commission on Centre-State relations are readily available with regard to choosing the occupants of Raj Bhavan.

It had said a Governor should be someone eminent in some walk of life, and should not be one “who has taken too great a part in politics generally, and particularly in the recent past”. Only a few eminent personalities outside the domain of politics and civil or military service have been made Governors. As long as parties pursue their own political interests rather than abide by the Constitution, it will be left to the courts to uphold federal norms.