Saturday, February 4, 2023


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By Inderjit Badhwar

Even as the unholy alliance of the Shiv Sena, NCP and Congress is poised to form a new government in Maharashtra following state elections that threw up a hung assembly with the BJP emerging as the single largest party, the role played by Governor Bhagat Singh Koshyari, an RSS veteran and former BJP office holder, has come under sharp criticism from the opposition.

Leaders from the Congress, the Left, and the TMC attacked the imposition of President’s Rule before the deadline given to rival parties to demonstrate their strength, as a “butchery” and “mockery” of democracy. They lambasted the governor’s decision as partisan and a repeat of similar gubernatorial action in Uttarakhand, Arunachal Pradesh and Goa in the past.

While Congress supremo Ahmed Patel accused Koshyari of brazenly brushing aside Supreme Court rulings on government formation by invoking Article 356 (failure of constitutional machinery in the state), the Shiv Sena prepared a plea for the apex court, challenging the governor’s verdict as “ex facie arbitrary, unconstitutional and violative of Article 14”.

The Shiv Sena had been asked to form the state government on November 10. It had signalled its readiness to do so on November 11. The Sena avers that the governor is obligated to permit a realistic timeframe for parties to wrap up parleys on government creation and not act as an “agent or mouthpiece of the central government”.

On a wider constitutional canvas, the Maharashtra imbroglio has once again riveted the nation’s attention on cooperative federalism with which the Indian nation was glued together. Founding Fathers Nehru and Ambedkar were extremely wary that governors’ powers to dismiss popular state governments or interfere in formation of new governments following elections under Article 356 would be misused and politicised. They insisted these powers be curtailed or used only in the rarest of rare cases like a total constitutional meltdown.

The Founding Fathers envisaged governors as the agents of the constitutional central polity and not the handmaidens of any political party. This precept has been abused ad infinitum ad nauseam by all political parties. It is indeed encouraging to see that the Supreme Court has not shied away from attempting to grapple with an issue that goes to the very root of cooperative federalism.

I return, in this space, to the wisdom of the Sarkaria Commission. Not enough can be said about the sagacity, political perspicacity, scholarship and uncanny
far-sightedness of the luminaries—Ranjit Singh Sarkaria, B Sivaraman, Dr SR Sen. These notables undertook—between 1983 and 1988—a remarkable review of centre-state relations under the Indian constitution and authored a 1,600-page magnum opus which stands out as a beacon for the Indian system of governance, guiding it more forcefully towards the cardinal principle that glues Indians together as citizens—the practice and pursuit of enlightened federalism.

I wrote in April 2016 that in the aftermath of the baffling politico-legal-constitutional melodrama being played out in Uttarakhand even before the embers of the Arunachal Pradesh conflagration had died out, it is significant that the Shiv Sena, a regional avatar of the Hindu Right more in tune with the BJP’s Hindutva nationalism than the Congress’ inclusive secularism, should be singing the same tune as the Grand Old Party. In unusually harsh terms, the Sena had officially condemned the BJP’s imposition of Governor’s Rule in Uttarakhand under Article 356 of the Constitution as a “strangulation” of democracy: “In a democracy, the voice of the opposition is of paramount importance and should not be strangled since a single-party rule would be worse than an Emergency or dictatorship. The country will be destroyed if the opposition is targeted and snuffed out.”

The author of this sentence could well have been a member of India’s Constituent Assembly!

The detailed story of the unfolding political crisis in which the courts were then involved was carried separately at the time in India Legal.  What continues to be deeply disturbing is the habitual and flagrant disregard for legal, constitutional and administrative pronouncements by politicians and political parties. The conditions under which Article 356 (to be applied in the “rarest of rare cases”) can be used to dismiss an elected assembly and impose Governor’s Rule are clearer than daylight. There are no loopholes. The Constitution and the landmark Supreme Court decisions (Bommai in 1994, and Rajasthan versus Union of India in 1977) stand together as an impregnable legal fortress against misuse of this provision by ruling parties at the centre to establish their primacy over a state government through horse-trading of legislators and political subterfuge with the connivance of state governors who act as agents of the ruling party rather than as representatives of the Union of India.

Yet, this Article has been invoked 126 times since Independence to dismiss state governments. It is clear that the Article may be invoked in emergency situations where there’s a total breakdown of law and order, as a constitutional necessity. But it cannot be used as a political weapon. And it certainly cannot be used in violation of the Gold Standard in case of an alleged loss of a majority in a legislature—the necessity of a floor test.

Alas, the party crying foul the loudest—the Congress—has historically been the worst violator starting with the Nehru government which dismissed the first democratically elected state Communist regime of EMS Namboodiripad in Kerala in 1959. As blogger Nived Narayan summed it up on Quora: “It set a precedent. And that was the real problem. The Congress government dismissed state governments at will whenever they were formed by parties which it had problems with. Such belligerent show of strength by the Central government, and that too from Nehru himself set a bad precedent which later set an example for the likes of Indira and Janata government of Morarji to trample upon the federal structure.”

“Trample upon the federal structure” is the operative phrase. It is playing with fire. It is tantamount to unravelling the delicately and sensitively woven warp and woof of India which came into being as a nation of citizens in 1947-48 after more than 562 independent principalities joined the Indian Union (formerly British India).

It was to the preservation of this striking new national amalgam of the most culturally, geographically and linguistically diverse people of the world through the concept of Indian citizenship that the Sarkaria Commission addressed itself. Its mandate—re-examining and suggesting reforms in the whole gamut of centre-state relations—was huge and daunting. Further, it laid the intellectual and academic framework for a monumental project later undertaken by the first NDA government in 2000. Under a bold initiative from Prime Minister Atal Bihari Vajpayee, the government established the National Commission to Review the Working of the Constitution (NCRWC), also known as the Justice Venkatachaliah Commission, to recommend possible amendments to the Constitution of India. The mammoth task force submitted its report in March 2002. What was the key feature in the Constitution that enabled the very idea of Indian nationhood? Both commissions answered this question with an answer that was spot on! Federalism.

To strengthen federalism, even at the cost of more decentralisation and greater regional autonomy, Sarkaria believed, was to strengthen India. But laws and emergency provisions were also needed to prevent the disintegration of the nation through violence and anarchy. One of them was Article 356.

The 1,600-page Sarkaria report with 247 recommendations spread over 19 chapters made the following observations: “Federalism is more a functional arrangement for cooperative action, than a static institutional concept. Article 258 (power of the Union to confer powers etc on states in certain cases) provides a tool by the liberal use of which cooperative federalism can be substantially realised in the working of the system. A more generous use of this tool should be made than has hitherto been done, for progressive decentralization of powers to the governments of the states….”

Article 356, it recommended, should be used “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”.

When will we ever learn?

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