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Desist from Article 356 fraud

For the nth time in its post-1950 career, the Congress Party is in the process of demonstrating that, Bourbon-like, it can `learn nothing and forget nothing' when it comes to deploying the knife of Article 356 against State governments it intensely dislikes. With the party that leads the United Progressive Alliance whipping up political hysteria following the Supreme Court's disqualification of 13 Bahujan Samaj Party MLAs in Uttar Pradesh, the knife is being pointed at the Mulayam Singh regime, which has repeatedly demonstrated its majority on the Assembly floor. The only thing that stands in the way of constitutional fraud by the Centre is the frontal opposition of the Communist Party of India (Marxist), on whose support the minority UPA regime crucially depends. Constitutional theory as well as parliamentary practice are being stood on their head by the wise men of the Congress, including constitutional lawyers, proclaiming that the Mulayam Government must be dismissed immediately because its coming into being was `unconstitutional.' They seem to have a poor memory for the political circumstances in which Mr. Singh became Chief Minister — in September 2003. The February 2002 election produced a hung Assembly in U.P., with the Samajwadi Party emerging as the single largest party. The Bharatiya Janata Party and the BSP entered into a post-poll alliance to form a government. In August 2003, the BJP walked out of the government and defections from the BSP enabled Mr. Mulayam Singh to form a government. Significantly, the Congress Party handed over to the Governor (on August 27, 2003) a letter of support to the Mulayam Singh government, even considered joining it, and voted for it on the Assembly floor. To demand that the Supreme Court's judgment should be applied retroactively to dismiss a government at whose birth the Congress acted as midwife is to insult the democratic intelligence of the people of India.

Historically, as far as the use of Article 356 of the Constitution in sensitive cases by Congress governments is concerned, cheating has been the rule. In an analysis of the more than 100 instances of the use of Article 356 since 1950, the National Commission to Review the Working of the Constitution (NCRWC) found that there was gross misuse in at least 20 cases. Virtually all these cases involved Congress or Congress-backed governments at the Centre. The 1994 judgment of a nine-member Constitution Bench of the Supreme Court in the Bommai case effectively put an end to this shameful chapter in India's constitutional and political history. There have been dubious applications of Article 356 even after that but it is virtually impossible for Central governments to get away with old-style fraud. If there is any question whether the Mulayam Singh government has majority support, that must be answered on the floor of the U.P. Assembly because, as the Supreme Court held in the Bommai case, "in all cases where the support to the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House." In fact, an NCRWC consultation paper sensibly recommended that Article 356 should be amended to ensure, among other things, that "whether the Ministry in a State has lost the confidence of the Legislative Assembly or not should be decided only on the floor of the Assembly and nowhere else" and that "only where a Chief Minister... refuses to resign after his Ministry is defeated on a motion of no-confidence should the Governor dismiss the State Government."

As for the argument that President's Rule must be imposed in U.P. to pre-empt `horse-trading,' it is clear that the Congress Party has learnt nothing from the stinging rebuke the Supreme Court delivered just a year ago to Bihar Governor Buta Singh for his unconstitutional and mala fide exercise of power in recommending the dissolution of the State Assembly. If media reports can be relied upon, Governor T.V. Rajeshwar appears to have forgotten that the Supreme Court, in the Bihar case, held that Governor Buta Singh's reasoning that some legislators were being induced with offers of money and other allurements were his own opinion and perception, without any material to back them up; that such matters under Article 356 could not be decided on a mere perception; that the way the Governor misled the Union Council of Ministers was "destructive of the democratic system"; and that "the Court would not remain a silent spectator to such subversion of the Constitution."

Finally, every effort must be made to ensure that the upcoming elections to the U.P. Assembly are free, fair, and peaceful. If there are any apprehensions about partisan officials in the State or strong-arm tactics by Samajwadi Party cadres or the role of criminal elements, the simple answer is that the Election Commission of India, as presently constituted, is decidedly up to the challenge. Resort to President's Rule in Uttar Pradesh for the sake of underwriting democratic elections will be tantamount to expressing a lack of confidence in the ECI's independence, ability, and commitment to bat for democratic India. Instead of dreaming about exploiting the instrument of President's Rule to further the Congress Party's hopeless prospects in the U.P. Assembly elections, the Centre must get ready to back the Commission wholeheartedly with all the resources it needs, above all police forces, to do its job. Another fraudulent application of the knife of Article 356 is bound to intensify tensions in the Indian polity. It could have destabilising implications for the UPA Government. For the Congress high command as well as Prime Minister Manmohan Singh, the wise course will be to rein in the Article 356 hawks and let the Mulayam Singh government go through its Assembly floor test in a few days.

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