India's National Magazine
From the publishers of THE HINDU
Vol. 15 :: No. 21 :: Oct. 10 - 23, 1998
The BJP's Bihar Fiasco
President K.R. Narayanan's Minute against President's Rule in Bihar is a comprehensive constitutional rebuff to yet another attempt to misuse Article 356.
Pandit H.N. Kunzru: May I ask my honourable friend to make one point clear? Is it the purpose of Article 278 and Article 278A (Articles 356 and 357 in the Indian Constitution) to enable the Central Government to intervene in provincial affairs for the sake of good government of the provinces?
Dr. B.R. Ambedkar: No, no. The Centre is not given that authority.
Kunzru: Or only when there is such misgovernment in the province as to endanger the public peace?
Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional government of the provinces. Whether there is good government or not in the provinces is not for the Centre to determine.
- Constituent Assembly Debate, August 4, 1949.
WHATEVER was on the mind of the Bharatiya Janata Party-led coalition Government when it recommended the dismissal of the Bihar Government, it was not the Constitution. President K.R. Narayanan's Minute of September 25, 1998 returning the Union Cabinet's recommendation for reconsideration makes this central fact clear. Although measured in tone, the President's Minute rips apart the case made for the dismissal of Chief Minister Rabri Devi's Government by both the Union Government and Governor Sunder Singh Bhandari. Such a constitutional rebuff is unprecedented. The BJP has, predictably, sought to contain the damage by refusing to make the Minute public, but leaking bits and pieces of it to the press with a view to playing down its soundness and significance. The real question that emerges from a study of the Minute is just why the BJP appears determined to ensure that President's Rule is imposed in Bihar even after its humiliating first-round encounter with Rashtrapati Bhavan.
Proceeding on the assumption that so important a document must not be, and could not be, kept a secret from the people of India, a Frontline team went after it in systematic pursuit. Special Correspondent Sudha Mahalingam succeeded in gaining full access to the document from sources within the political government - and outside the Rashtrapati Bhavan. The President's establishment, which has been approached by the press for an idea of the contents of the Minute, remained scrupulously uncommunicative.
The Minute is a signed document, signed by President Narayanan. It runs over two pages and a third. It is addressed, below the text, to the Prime Minister, who was not in the country to receive and read it in the first instance, but left it to Union Home Minister L.K. Advani and the Cabinet to work out a response.
President Narayanan's Minute concludes with a succinct statement of reasons, or grounds, for returning to the Cabinet its recommendation of Central Rule. First, the communication states, "the condition precedent for the invocation of Article 356, viz. that there has been failure of the Constitutional machinery in the state, has not been adequately made out by the Governor." Secondly, it holds, "it would be imprudent to take action under Article 356 in Bihar when preliminary steps such as warning, directives and eliciting explanation from the state have not been taken by the Union." Thirdly, it says, "the fact that the government headed by Shrimati Rabri Devi enjoys majority support in the Legislative Assembly has to be borne in mind as per the Sarkaria (Commission) passage cited in the Bommai judgement."
HOW does the President arrive at these momentous conclusions? What is clear is that he does not find Governor Bhandari's assessment of a breakdown in law and order in Bihar constitutionally persuasive. In his Minute, the President notes that he regularly receives similar reports from several other Governors, adding that he sees no need to mention their names. These detail "accounts of criminal activities going beyond 'normal' limits and threatening public order with mafia type links enjoying the overt and covert backing of external agencies." President Narayanan also records his receipt of police and Intelligence Bureau reports of killings, dacoities, abduction and extortion occuring in several regions. Reading such reports, he observes, is a "distressful experience".
President Narayanan's Minute acknowledges the wide powers the Union Government has to intervene in such situations. It puts Article 355 in constitutional perspective by noting that the provision obliges the Centre "to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution." The Minute also refers to Article 256, which enables the Centre to issue directions to the States to ensure compliance with law. Moreover, President Naryanan argues in the second paragraph of the Minute, Governor Bhandari's claim that there was "a slide of Bihar into anarchy" was "particularly apt". This, the President explains, is because a slide is a process that takes place over time. "A pertinent point arises, viz., that over the period of the slide, remedial action in terms of Constitutional obligation ought to have been taken to arrest the decline."
Special emphasis is placed in the President's Minute on the need for warnings to State governments before the use of Article 356. President Narayanan points out that the Third Meeting of the Inter-State Council, held on July 17, 1997, decided that Article 356 should be retained with safeguards like the issue of show-cause notices by the Union Government. "The absence of such warnings," he records in his Minute, "which would have alerted the State Government to its Constitutional responsibilities, is, in my view, an infirmity in the proposal." The Minute proceeds to make clear the President's conviction that the recommendation of Central Rule will not stand legal scrutiny on this ground specifically. "The absence of such warnings can render the issue of a Proclamation under Article 356 in respect of Bihar fundamentally vulnerable in the Courts of Law."
This position emerges, as the Minute makes clear, from the President's careful study of Constituent Assembly debates which discussed the provision, the Supreme Court's seminal judgement of March 11, 1994 in the Bommai case, and the recommendations of the Sarkaria Commission on Centre-State relations. Article 356, the Minute emphasises, is "culminative in nature". "Only when a set of steps taken by the (Union) Government have not remedied the perceived problem can Article 356 be imposed." The only permissible exception to this rule is that given in the Bommai judgment.
The President's Minute mentions another important consideration relating to Article 356, a practical one: "While recommending an enactment such as this (the) Government would do well to take into account its passage in both the Houses of Parliament." And further: "It would serve little purpose, least of all to the cause of good governance in Bihar, if the Proclamation were to fail to obtain Parliamentary approval, as it needs must, in terms of the Constitution."
K.M. KISHAN / REUTERS
Put simply, President Narayanan's Minute makes it clear that any imposition of Article 356, barring exceptional or extreme situations, must be preceded by non-confrontational efforts to sort out Centre-State differences and conflicts and then by issuing warnings and directives and eliciting explanations from the State.
WHAT then are the BJP-led Government's options in Bihar?
In no way does President Narayanan condone maladministration in the State nor does his Minute take a stand on the social and economic predicament of the people of Bihar. These have been considered to be not germane to the question whether there has been a breakdown of the constitutional machinery in that State.
The Minute presents President Narayanan's balanced understanding of the problem thus: "Ultimately, Bihar and other regions afflicted by the kind of malaise described by the Government need a restorative combination of political, social, economic and administrative measures." President's Rule is a short-term measure which "cannot subserve the larger end". In this context, the Minute draws the Government's attention to the President's address to Parliament in March 1998 in which he articulated the Government's intention to implement the Sarkaria Commission's recommendations.
The message behind the constitutional rebuff was clear: the answer to Bihar's financial, administrative and policing problems lay in genuine federal interaction, not in politically motivated use of the knife of Article 356.
MUCH of President Narayanan's line of argument appears to have emerged from the expert summary on the Bommai case prepared for him in October 1997 prior to his returning the recommendation of President's Rule in Uttar Pradesh to Prime Minister I.K. Gujral's United Front Cabinet. In what was to became the majority decision, Justices P.B. Sawant and Kuldip Singh had held that for Article 356 to be imposed, "a situation of impasse" had to have developed. By an impasse, the Justices said, they meant "a legal inability as well as physical impossibility" of governance in accordance with the Constitution. Justices B.P. Jeevan Reddy and S.C. Agrawal, as well as Justice S. Ratnavel Pandian who concurred with them, were even more explicit: "It is not each and every non-compliance with a particular provision of the Constitution that calls for the exercise of the power under Article 356(1)." The President's Minute, then, takes its basic stand on the judicially mandated position on what a breakdown of the Constitution means.
The BJP, however, chose to take political exception to the President's position. Its basic stand is expressed in party president Kushabhau Thakre's somewhat aggressive rhetorical assertion: "If Article 356 cannot be invoked in Bihar, then it is redundant." This has been backed up by such high-powered assertions as "there is no Government worth the name in Bihar" (Advani) and by challenging the Opposition parties to a "national debate on Article 356."
President Narayanan's firm and principled stand on the scope and application of Article 356 sent the BJP's spin doctors into overdrive. Privately, some senior party officials claimed that the recommendation for President's Rule in Bihar had been sent with the tacit consent of the President. Given the President's record and his constitutional understanding elaborated in the Minute, it was clear that this was a figment of their damage-limiting imagination.
What was also clear was that neither the Union Cabinet nor the Governor's report had made out a cogent case for the imposition of Central Rule. The BJP responded by attempting to turn the Bihar debate into an election issue for the November Assembly contests. Plans for a paper pointing to supposed Opposition hypocrisy on Article 356 and a national debate on its provisions have begun to be executed. BJP leaders say that a central theme of their campaign will be that their efforts to ensure good governance in Bihar (which Advani has characterised as a "model of what a government should not be like") are being obstructed by Rashtrapati Bhavan and the Opposition parties. It will be a game plan of turning the political heat on those who stood in the way of its attempted coup d'etat in Bihar.
The first elements of the game plan have now been put in place. Significantly, on October 2, BJP general secretary M. Venkaiah Naidu claimed that Bihar was "a fit and textbook case" for the use of Article 356 because of "the total collapse of the constitutional machinery." "The Government in Bihar should go," he demanded, "and the people of Bihar should be saved." Although Venkaiah Naidu said that his remarks did not represent the official position of the Government, this was the closest the BJP has so far come to signalling its intention to force the imposition of President's Rule in the face of the constitutional rebuff. And the day after Prime Minister Atal Behari Vajpayee, on his flight home from Paris, held forth on "mafia raj" in Bihar, senior BJP figures and some coalition partners warned of serious consequences if the Cabinet did not send a recommendation of President's Rule again. Party vice-president Kailashpati Mishra, for example, warned of a "civil war" in Bihar on account of the President's "silence". Union Minister and Lok Shakti leader Ramakrishna Hegde, who until the previous day was publicly opposed to the use of Article 356, executed a startling volte-face. Advani himself kept up the pressure with the claim that the President's action had been accepted because of "respect for constitutional institutions", not because of any agreement with his Minute.
THIS renewed offensive on Bihar might be put down to pre- election polemic if it were not for the fact that the BJP was inflicting significant political costs on itself in the process. On October 2, the Shiromani Akali Dal (SAD) announced its intention to review alliances it had planned with the BJP for elections to the Rajasthan and Delhi Legislative Assemblies. Although the principal reason for the SAD's anger was the rejection of its demand that Shaheed Udham Singh Nagar district not be included in the proposed Uttaranchal state, differences over the use of Article 356 were also cited as a reason for its serious unhappiness. Union Minister for Food and Fertilizers Surjit Singh Barnala had earlier said the coalition was "under strain" because of the BJP's demand for the use of Article 356. Barnala was victim of the Article twice, in 1986 as Punjab Chief Minister, and in 1991 when as Tamil Nadu Governor he refused to recommend the invocation of Article to dismiss the Dravida Munnetra Kazahagam Government, which enjoyed a huge majority in the Legislative Assembly.
If the SAD's bluster is subject to the larger imperative of not opening political space for a hostile Congress(I) and the Left parties, other allies of the BJP face no such pressures. The most serious outcome of sending back a recommendation of Central Rule in Bihar to the President could be that the BJP would come under tremendous pressure to accede to similar demands from parties such as the All India Anna Dravida Munnetra Kazhagam (AIADMK). AIADMK general secretary Jayalalitha said on September 23 that action to remove the DMK regime in Tamil Nadu ought to have preceded the use of Article 356 in Bihar. This, she said, was because the AIADMK had made the demand long before the Samata Party had done so in Bihar. Jayalalitha insisted that her party was not consulted on the Bihar action, and said that it would have made its position explicit had it been asked.
BJP president Kushabhau Thakre, for one, appears willing to pay the price to retain the AIADMK's support. During his visit to Chennai on September 25, he claimed that the "law and order situation in Tamil Nadu is not good" and suggested that it needed to be reviewed by the Union Cabinet. The principal problem with accepting the AIADMK demand, Thakre suggested, was that "both Parliament and the courts have to agree on the use of Article 356." What was significant about these remarks was not their content. It was that an earlier stand was being reversed and a signal being sent out that the BJP was, in the aftermath of the Bihar fiasco, willing to do business with allies. Demands for dismissal have also come from Rashtriya Lok Dal leader Om Prakash Chautala, who has been asking for the sacking of the Bansi Lal regime in Haryana. Chautala has made clear in recent weeks that his continued support to the BJP in New Delhi, although numerically insignificant, is contingent on the BJP abandoning Bansi Lal.
Advani has, however, spoken in more than one voice. On October 2, he said that the Union Government had no immediate plans to push the Bihar dismissal. An unintended benefit of the BJP's choosing not to compel the President to impose Central Rule in Bihar now would be some manoeuvring space for handling a proliferation of demands for similar action elsewhere. Should the BJP be forced to meet its allies' demands, the Union Government would be pushed into a series of embarrassing confrontations with Rashtrapati Bhavan, the courts and an array of Opposition parties getting together on this powerful issue against the BJP.
Such an adventurous course would also invite the wrath of the SAD, the Telegu Desam Party (TDP) and the National Conference. Shortly after his return from an extended visit to the United States last month, Andhra Pradesh Chief Minister N. Chandrababu Naidu made clear his anger with the BJP's plans to use Article 356 in Bihar. Given the evident dissent within the TDP over Chandrababu Naidu's backing of the BJP, Article 356 could well led to the destruction of the coalition.
What is most intriguing about the Article 356 affair is the near-silence of Samata Party leaders in the wake of the President's Minute. Addressing newspersons at the Press Club of India in New Delhi after the Cabinet's recommendation, Railways Minister Nitish Kumar briefly defended the action. In Chennai, Defence Minister George Fernandes put forward similar arguments. Fernandes attempted to cover up the cracks within the BJP-led coalition on the issue, claiming that no allies had expressed reservations on the action in Bihar. But since the President returned the Cabinet recommendation, both Fernandes and Nitish Kumar have studiously avoided comment on their future course of action. One possible explanation for their silence is that Samata Party leaders have come to believe that dismissal of the Bihar Government could well lead to the erosion of the party's north Bihar constituency.
IN the face of such complications, how will the BJP actually act? The party is faced with two core, possibly irreconcilable, concerns. On the one hand, a politically aggressive posture on Bihar offers it the opportunity of convincing its upper-caste, North Indian constituency of its credentials. The BJP believes it can emerge before the November elections as a party of order, arrayed against an "opportunistic" and "criminal" Opposition. Such action will also help consolidate the substantial body of anti-Laloo Prasad Yadav voters in Bihar behind the BJP, a useful investment for the future. On the other hand, the BJP will have to confront the long-term problems that its actions on Bihar will create for itself. If the AIADMK can demand a price higher than the BJP is willing to pay, the dismissal of the Bihar Government can push the TDP and the SAD to withdraw their support. The SAD has also been coralling alliance forces disgruntled with the BJP, notably the Trinamul Congress.
Whatever course the BJP eventually chooses to take on Bihar, President Narayanan's role is certain to form a central part of the discourse that will follow. The not-so-subtle insinuations of political bias that the BJP has let loose on the President must be set against the fact that the President has in no way condoned maladministration in Bihar or any other State. He has also made it clear that his constitutional actions are not a matter concerning an individual or party and not a matter for either giving or receiving personal gratitude. It is in this context that he chose not to meet Laloo Prasad Yadav and Rabri Devi when they "airdashed" to New Delhi to convey their thanks to him.
The BJP's insinuations of political bias against President Narayanan are richly ironic. "He will go down in history as the saviour of democracy," Advani had said of him in the wake of the 1997 constitutional action that averted President's Rule in Uttar Pradesh. "Hats off to him," BJP general secretary Pramod Mahajan duly intoned. Right-wing, pro-BJP commentators went even further. President Narayanan's action, wrote The Pioneer editor Chandan Mitra, "cannot but remind us of the words of Bhagwad Gita - sambhavami yuge yuge - Krishna's promise to return in every age to prevent the triumph of evil." The considered opinion of the President on Article 356, cited as scripture just twelve months ago, has in the hardcore saffron view been transformed into satanic verse.