Murder of Democracy in Bihar

Midnight's Misadventures
The Bihar dissolution is in breach of constitutional morality
Soli J. Sorabjee

The contention that no party was able to form the government before or some time after President's rule was imposed is specious because ground realities of mustering the requisite numbers are not static but ever changing.

Of all the denizens of the animal kingdom, my favourite is the horse, a noble stead whose name is regrettably associated with the unethical practice of engineering defections called horse-trading. The mantra of horse-trading is frequently invoked by governors in sending tailor made reports to the Centre to facilitate imposition of President's rule in states and dissolution of state assemblies.

Let me recall some instances. On July 31, 1988 Shri Vamuzo, one of the 13 defecting MLAs who had formed a separate party, informed the governor of Nagaland that he had majority support in the assembly and was in a position to form the government. The governor in his report to the President alleged that the said 13 MLAs were kept in forcible confinement by Vamuzo. Despite Vamuzo's denial and his request that the correct facts may be ascertained from the forcibly confined members as alleged, the governor did not do so. Instead he sent his report to the President in which it was highlighted that "horse-trading was going on in the state". On the basis of the governor's report President's rule was imposed in Nagaland on August 7, 1988 and the legislative assembly was dissolved.

Vamuzo challenged the Centre's action, initially in the Guwahati high court. The case ultimately reached the Supreme Court which held that since no opportunity was given to Vamuzo to rebut the allegations and to prove his strength on the floor of the House and to form the ministry, the proclamation was unconstitutional.

The same stratagem was resorted to in Karnataka. S.R. Bommai was the chief minister. He asserted that he enjoyed majority support and was willing to prove it on the floor of the House. Nevertheless, the governor in his report sent to the President stated that the letters from the seven legislators who were supporting Chief Minister Bommai were obtained by pressurising them and moreover "horse-trading was going on and the atmosphere was getting vitiated". Based on the governor's report President's rule was imposed and the assembly was dissolved.

A special bench of the Karnataka high court dismissed Bommai's writ petition, one of the reasons being the alleged pervasive horse-trading. The Supreme Court reversed the high court and held that assuming there was horse-trading, the Xth Schedule to the Constitution which dealt with defections was designed precisely to counteract "horse-trading". The Supreme Court further ruled that "it was improper on the part of the governor to have arrogated to himself the task of holding, firstly, that the earlier 19 letters were genuine and were written by the said legislators of their free will and volition. He had not even cared to interview the said legislators." The Supreme Court castigated the governor "for taking upon himself the task of deciding that seven out of the 19 legislators had written the subsequent letters on account of the pressure from the chief minister and not out of their free will. Again he had not cared even to interview the said legislators. Thirdly, it is not known from where the governor got the information that there was horse-trading going on between the legislators. Even assuming that it was so, the correct and the proper course for him to adopt was to await the test on the floor of the House."

The further observations of the Supreme Court in that case are most significant: "what is important to note in connection with this episode is that the governor at no time asked the chief minister even to produce the legislators before him who were supporting the chief minister... We are of the view that this is a case where all canons of propriety were thrown to the wind and the undue haste made by the governor in inviting the President to issue the proclamation under Article 356(1) clearly smacked of mala fides." The Supreme Court ruled that the dismissal of a duly constituted ministry on the basis of material set out in the governor's report and which was neither tested nor allowed to be tested and was no more than the ipse dixit of the governor, was unconstitutional.

Recently Bihar Governor Buta Singh has also chanted the convenient mantra of horse-trading in colourful terms. Constant repetition of the mantra of horse-trading in Goebbelsian fashion cannot legitimise nor validate the Centre's unconstitutional action in Bihar.

The crux of the matter is that in defiance of the principles laid down by the Supreme Court the governor did not interview the legislators alleged to have been bribed or forcibly abducted. No opportunity was given to Nitish Kumar, who claimed he had the necessary numbers to form the government, to rebut these allegations. No efforts whatsoever were made by the governor to explore the possibility of formation of a stable government in view of the current changed conditions before recommending dissolution. The contention that no party was able to form the government before or some time after President's rule was imposed is specious because ground realities of mustering the requisite numbers are not static but ever changing. The indecent haste at a midnight meeting, supposedly convened to discuss the security situation in Delhi because of the bomb blasts, where a decision was taken with lightning speed to dissolve the assembly and was faxed to the President in Moscow - who assented to the dissolution by fax again with lightning speed - are reminiscent of the celebrated judicial utterance that "dark deeds are associated with the dark hours of the night". And have we forgotten that the spurious June 1975 Emergency was foisted on the nation during nocturnal hours? Pray, what was the tearing hurry? The country was not facing any threat of external aggression or internal rebellion. Or was the threat and bullying of Laloo Prasad too difficult to resist? The inescapable inference is that dissolution was pre-determined and the prime motivation was that Nitish Kumar belonging to the opposition group should not by hook or by crook be even permitted to make and establish his claim of majority support. He might well have failed to establish it but the governor was in a hurry. The dissolution of the assembly apart from being illegal is in breach of constitutional morality which one would have expected our principled prime minister to observe.

(The writer is a renowned authority on Constitution)