Politics subverts an exception into rule

On Arunachal Pradesh, the Central government has filed its reply on the notice given by the Supreme Court. The hearing is to take place on Monday. Whatever the outcome, it does appear from the facts available that what has happened in that sensitive border state is a shocking example of non-cooperative federalism. The imposition of President’s rule — that is under scrutiny by the Supreme Court — involves several crucial aspects of Centre-state relations. What is the role of the governor What is the sanctity of the 10th schedule of the Constitution relating to anti-defection What is the culpability of the Centre in encouraging a governor to play a partisan role And, what are the limitations in invoking Article 356 of the Constitution to impose President’s Rule in a state

It is undeniable that some degree of dissidence was going on in the ruling Congress Party in Arunachal Pradesh that has a majority of 47 members in a House of 60. The Congress must introspect on this state of affairs. It is also true that the BJP sensed an opportunity in this dissidence to topple the Congress government. That is its right as an Opposition party. But none of this warrants the manner in which the BJP-appointed governor, J.P. Rajkhowa, decided to take matters in his own hand. On December 9, 2015, he decided to “convene” the Assembly on his own initiative without the advice of the lawfully constituted government. This “Assembly” met in a community hall on December 16, 2015 and impeached the duly elected Speaker, who had expelled 14 Congress MLAs under the anti-defection law. A day later, this “Assembly” met at a conference hall of a hotel and “adopted” a “no-confidence” motion moved by 11 BJP MLAs and two independent MLAs. With the deputy Speaker in the “Chair”, this rump, backed by 20 dissident Congress MLAs, later “elected” another dissident Congressman, Kalikho Pul, as the new chief minister.

The Congress Party in the state strongly protested this series of patently illegal actions. On January 24, 2016, the governor recommended President’s Rule under Article 356 of the Constitution. The BJP government at the Centre convened the Cabinet on a Sunday and approached the President for approval on the same day. The President was apparently not fully convinced because he asked Union home minister Rajnath Singh to meet him to clarify matters. But, subsequently, given his constitutional limitations, he granted approval, on January 26, the very day the nation celebrates the adoption of our Constitution. This happened a day before a five-judge Constitutional Bench of the Supreme Court was to hear a petition on developments in Arunachal and had been assured in an earlier hearing that no precipitate action would be taken until the matter was disposed off.

An independent observer would be entitled to ask, what in God’s name is going on in our country In several landmark judgments the Supreme Court has clearly laid down the remit of the governor in such situations. In S.R. Bommai vs Union of India,1994, the Supreme Court has clearly stated that when in doubt the majority of a political party must only be tested only on the floor of the House. Why did the governor then not consult the chief minister and convene the Assembly to allow rival factions to test their claims on the floor of the House And why did he then countenance the convening of a rump “Assembly” in a community hall, bypassing both the chief minister and the Speaker Could such a patently ludicrous act ever have taken place in a state like Uttar Pradesh, Bihar or Tamil Nadu And if it did happen in Arunachal, was the governor under the mistaken notion that nobody would take cognisance of his move in a far-flung border state, away from other attention grabbing headlines in the capital

In other judgments, the Supreme Court has said that the Central government should not treat a governor’s report recommending President’s Rule as the “gospel truth”. Did the BJP government at the Centre scrutinise the governor’s report from this point of view And if it did, why did the Cabinet rubber stamp the report and forward it for presidential endorsement with such urgency The Sarkaria Commission in 1988 has categorically recommended that Article 356 for the imposition of President’s Rule should be invoked “very sparingly, in extreme cases, as a measure of last resort, when all other alternatives fail to prevent or rectify a breakdown of Constitutional machinery in the state”. Was the situation in Arunachal Pradesh of such “extreme nature” and were other measures to “prevent or rectify a breakdown of Constitutional machinery” given any chance

The truth is that the BJP government at the Centre appears to have wilfully colluded with a partisan governor to adopt any means possible to replace a duly elected government with that of the BJP. Such a display of transparent cynicism by a party that was at the forefront, when in Opposition, to prevent the misuse of Article 356 leaves one quite dumb founded. In particular, there are reports that the governor, fully backed by the BJP, was party to the horse-trading with the clear aim to subvert the provisions of the anti-defection law. Undoubtedly, the installation of a BJP government in Arunachal when the Assam elections are round the corner would be beneficial to the BJP. But to achieve such benefits, must the Constitution, and clearly laid down injunctions of the Supreme Court and the law, be flouted so blatantly

Fortunately, the Supreme Court has preserved its judicial right, on the question of the invocation of Article 356, to examine and check the material provided by the governor and the Centre to obtain the satisfaction of the President. In its last hearing it asked for a copy of the report of the governor. It has also issued a notice to the Centre and the matter is to come up for hearing tomorrow. The judiciary, and not this government’s hollow slogan of “cooperative federalism”, is the forum of last resort for all those who believe that Centre-state relations must be governed not by the imperatives of short-term political interests, but by the majesty of the law.

Author-diplomat Pavan K. Varma is a Rajya Sabha member