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Friday, May 27, 2005

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Opinion - Leader Page Articles

Mystery of the midnight decision

Vidya Subrahmaniam

If Nitish Kumar did not have the numbers, he ought to have been exposed. The truth will now never be known.

GOA, JHARKHAND, and Bihar — the United Progressive Alliance Government has shot itself in the foot, again. The Government accomplished the Bihar mission on a breathlessly busy day. There were back-to-back functions to mark the regime's first anniversary. By late evening, television was done with revisiting the year gone by; the cameras were now trained on the twin blasts that rocked the Capital. Were these minor incidents or had terrorism returned to shatter the peace of the past year?

In the event, what ought to have been a long night of celebration turned into a long night of emergency meetings, hurried decision-making, and frantic tele-conferencing. The Union Cabinet was urgently convened. However, what topped the agenda was not the whys and wherefores of the bomb explosions — which the assembled media assumed was the case — but dissolution of the Bihar Assembly. The Cabinet's recommendation to this effect returned with the presidential stamp at 1.30 a.m. Moscow time (or 3 a.m. IST). Surely only an extraordinary contingency could have demanded resolution at that unearthly hour, not to mention requiring the presidential imprimatur from as far away as Moscow?

JD (U)-BJP Government?

The Government's clarification the subsequent morning revealed no such crisis. The Cabinet, Home Minister Shivraj Patil said, had acted on the recommendation of the Bihar Governor that the House be dissolved. Why? Because the situation was ripe for horse-trading, and, secondly, because no government appeared in the offing. Thus Bihar was set to return to the people only three months after going through the exercise and without the Assembly being once convened. Naturally, questions arise. Was the Janata Dal (United)-Bharatiya Janata Party combine about to form a government? Was the dissolution decision aimed at scuttling that effort? There was no doubt that a section of the Lok Jan Shakti Party had crossed over to the Nitish Kumar camp.

What was not clear was the status of the MLAs. Were they defectors who would be disqualified under the now-amended Anti-Defection Act? Or did they constitute two-thirds of the LJP, the numbers required for a legitimate merger with the JD (U)? If the former was the case, then the Governor's fear of horse-trading would be justified. If it was the latter, it might turn out that a legitimate government was prevented from being formed.

The truth will now never be known. At a press conference on Monday, Mr. Nitish Kumar evaded the issue by claiming that numbers did not matter. Of course, they mattered. The dissolution rested on the premise that his party had indulged in horse-trading. The only way he could disprove the presumption was by establishing that two-thirds of the LJP's 29 legislators — or a minimum of 19 — were ready to merge with the JD (U). Ten LJP MLAs had been paraded by Ram Vilas Paswan in Delhi. Another four who were in jail could be on either side; indeed both Mr. Kumar and Mr. Paswan claimed their support. So who was right?

By rushing to bring the curtains down on the unfolding drama, the UPA has made a martyr of Mr. Kumar. By virtue of the UPA's unholy hurry, the JD (U)'s Chief Ministerial nominee is presumed to have commanded a majority, which he never had to prove. Not surprisingly, Mr. Kumar and the BJP have been able to attribute the worst motives to the Governor and the UPA, with the world at large ready to believe their version rather than that of their opponents.

And why not? On Tuesday, Law Minister H.R. Bharadwaj defended the dissolution move on the plea that no party or coalition had staked a claim and no government could be formed in Bihar. Yet by moving in the dead of night to have the House dissolved, his Government had given precisely the opposite impression — that a government was about to be formed. What made the dissolution decision so urgent if not this possibility? It was not as if a deadline had been set for the political parties to form a government.

In March this year, Bihar was placed under President's Rule and the Assembly kept in suspended animation. This was a requirement held to be mandatory by the Supreme Court in the Bommai case — for a simple reason. An Assembly in suspended animation would allow government formation possibilities to be explored whereas dissolution would irreversibly close that option. The same rationale was evident in the court's other stipulation — that dissolution would not take effect unless the proclamation was expressly approved by Parliament. In other words, dissolution was not to be treated lightly; it was to be resorted to in a situation of persistent deadlock and where the weight of Parliament was deemed to be behind it.

True, the Bihar Assembly was hopelessly hung. The numbers were split three-way among the Rashtriya Janata Dal-Left, the LJP-Congress, and the JD (U)-BJP. Unless two of these combinations united there would be no government. Obviously the key rested with Mr. Paswan who was thought to be able to go in either direction. True also that over two months Mr. Paswan had come with up a series of impracticable formulae, among them a Congress Government led by a Muslim Chief Minister. This was non-serious considering the Congress had all of 10 seats in a House of 243.

Two months and 15 days

Nonetheless, there was no reason for Governor Buta Singh to have treated this as the end of the story. He had only to look at neighbouring Uttar Pradesh. That State was placed under President's Rule in similar circumstances, not once but twice — in 1996 and then again in 2002. Governments emerged from the deadlock on both occasions; in 2002, the resolution was quick with the BJP deciding within two months to prop up the Bahujan Samaj Party's Mayawati as Chief Minister. However, in 1996, it took a full five months for Ms. Mayawati to hitch her wagon to the BJP. President's Rule was imposed on October 17, 1996 and she became Chief Minister on March 21, 1997. Contrast this with Bihar 2005. President's Rule was imposed on March 7 and the President signed the order to dissolve the House midnight on May 22. Two months and 15 days was all it took Mr. Buta Singh to declare the situation irretrievable.

Clearly, this wasn't a case of time running out. President's Rule is undoubtedly detrimental to elective democracy but the solution lies in exploring government formation possibilities to the fullest, as recommended by the Sarkaria Commission: "In a situation of political breakdown, the Governor should explore all possibilities of having a government enjoying majority support in the Assembly ..." There is no evidence that Mr. Buta Singh followed this advice. (On December 19, 1996, the Allahabad High Court censured Governor Romesh Bhandari for not making enough effort to explore government formation possibilities in Uttar Pradesh.)

If Nitish Kumar did not have the numbers he ought to have been exposed, even if that involved suffering some amount of "horse-trading." Admittedly government formation in Bihar was not as easy as the JD (U)-BJP claimed. The four jailed MLAs were one big problem. Even assuming Mr. Kumar had won over two-thirds of the LJP, who would pronounce on the validity of the merger between his party and the LJP faction? Not the non-existent Speaker? It is also inconceivable that Lalu Prasad and Mr. Paswan would have let the matter go uncontested.

Even so, the motions had to be gone through — for reasons legal and political. The law may be an ass but it must be respected as long as it finds a place in the statute books. The fact is that the amended Tenth Schedule of the Constitution (the Anti-Defection Act) allows two-thirds of a party to go out and merge with another party. The provision is grotesque and hardly much of an improvement over the earlier situation, which recognised defection by a third of a party's legislators. Yet the so-called amendment was approved by Parliament.

Politically, it is anybody's guess if the UPA will gain from being seen as manipulating to have its way. The people of Bihar are hardly likely to be happy about a second election in so short a time. Cynics would go further. First the UPA messes up its alliance in Bihar; the division in vote (aside from the RJD's own erosion in support) causes Rabri Devi to lose her chair and the Congress to fare miserably. Mr. Paswan could have saved the situation by deciding to cast his lot with the Congress and the RJD. Instead, he holds out till it is too late. Left with no hope and no option, the UPA decides to go back to the drawing board.

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