Protecting secularism and federal fair play

If the President has given content to Bommai's promise of fair federal play, the judgment's mandate for secularism, and for action against parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics, has yet to be acted on.

PRAVEEN SWAMI

THREE years after the Supreme Court slammed the door shut on abuses of Article 356 of the Constitution, the law that it laid down has been put to work. S.R. Bommai vs Union of India, delivered in March 1994, had sharply limited the constitutional power vested in the Central Government to dismiss a State government. President K.R. Narayanan's decision to act on Bommai, and the survival of the Kalyan Singh Ministry, has been hailed as a triumph for the law and Indian federalism. But the Bharatiya Janata Party, which has so enthusiastically endorsed Bommai, escaped criticism for the fact that it was a flagrant violation of the same law that allowed its ally, the Bahujan Samaj Party (BSP), to form a Ministry in Uttar Pradesh on June 3, 1995. And few in the media have discovered that the cutting edge of Bommai is its radical attack on communal politics. If President Narayanan has given content to Bommai's promise of fair federal play, the judgment's other mandate, the mandate for secularism, and for constitutionally sanctioned action against political parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics, has yet to be acted on.

T.A. HAFEEZ
April 21, 1989: Karnataka Chief Minister S.R. Bommai (left) presents Governor P. Venkatasubbaiah a copy of the resolution passed by the Janata Dal Legislature Party requesting the Governor to give Bommai an opportunity to test his majority in the Assembly. Although floor tests continue to be the sole practical means of establishing majorities, incumbency is clearly a key factor in the outcome of such tests.

The 1994 Supreme Court majority decision in essence overturned a long tradition that the use of Article 356 was not really subject to review by courts, a doctrine articulated in a landmark 1977 case, State of Rajasthan. Bommai laid down the conditions under which State governments may be dismissed, and mechanisms for that process. These were expressed through six opinions, with the judgments of Justices A.M. Ahmadi, K. Ramaswamy, and J.S. Verma for himself and Yogeshwar Dayal dissenting from the majority opinion of Justices P.B. Sawant for himself and Kuldip Singh, B.P. Jeevan Reddy for himself and S.C. Agarwal, and, finally, S. Ratnavel Pandian. Although this seeming maze of judgments created some confusion among laypeople about precisely what portions in the Supreme Court decision were the law, the debate has now been largely resolved. Jurist Soli Sorabjee wrote in a critique of the case: "The judgments of Sawant and Kuldip Singh, JJ, to the extent they are not directly or by necessary implication inconsistent with judgments of Justices Jeevan Reddy and Agarwal, are part of the majority judgment and constitute the law of the land" (Supreme Court Cases, 1994, Volume 3).

WHAT, then, did these judgments demand when Mayawati announced that the BSP was withdrawing support to the Kalyan Singh Ministry? The language of Bommai is plain. "In all cases where the support of the Ministry is claimed to have been withdrawn by some legislators," Justices Sawant and Kuldip Singh held, "the proper course for testing the strength of the Ministry is holding the test on the floor of the House." "The assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the Governor or the President" (emphasis added). Justices Jeevan Reddy and Agarwal underlined the floor test procedure: "Whenever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House" (emphasis as in the original). The sole exception to this will be a situation of "all-pervasive violence where the Governor comes to the conclusion - and records the same in his report - that for the reasons mentioned by him, a free vote is not possible."

These simple legal mandates were before President Narayanan when he first ordered a brief on Bommai as BJP-BSP relations deteriorated in the State. Prime Minister I.K. Gujral proved receptive to the need for a floor test, but Defence Minister Mulayam Singh Yadav, backed by the Congress (I), insisted that the BJP Government be dismissed. Although legally in the wrong, Mulayam Singh was in a political sense entitled to suggest the course of action he did. In June 1995, his Ministry in Uttar Pradesh, deserted by the slippery BSP, became the first to be dismissed after Bommai was delivered. The Chief Minister was summoned to the Raj Bhavan at 4 p.m. on June 3 and told to resign. Despite his explicit protest against the unconstitutionality of the action since Bommai made a floor test his right, Governor Motilal Vora asserted that legal opinion stressed his discretionary powers in such situations (Frontline, June 30, 1995).

SANDEEP SAXENA
The Supreme Court's verdict in the Bommai case sharply limited the constitutional power vested in the Central Government to dismiss a State government, but upheld the dismissal of four BJP Governments for going against the constitutional philosophy and provisions that were secular.

This was untrue, but the Congress (I) Government at the Centre was supported by sections of the media that were intensely hostile to Mulayam Singh's handling of the Ayodhya crisis and his position on the Mandal Commission formula issue. Although the Samajwadi Party moved the Supreme Court, the last heard of the case was its reference to a Constitution Bench two years ago.

The decline and fall of the Suresh Mehta Ministry in Gujarat in 1996 underlined other problematic aspects of Bommai. Again, the constitutional tests laid down by the Supreme Court majority were not honoured. The Mehta Ministry was dismissed on September 19, a day after it "won" a confidence vote amidst violence in the Assembly and after ejecting the Opposition from the floor. Governor Krishna Pal Singh was unmoved by that vote, though whatever happened in the House clearly did not meet the test of "all-pervasive violence" as laid down by Justices Jeevan Reddy and Agarwal. One month later, many of the MLAs who had voted for the Suresh Mehta Ministry supported the Shankarsinh Vaghela Ministry. Incumbency was clearly a key factor in the outcome of floor tests and an irate Mehta told Frontline: "It is power that tilts (the) majority. If my position is restored, I can prove my majority in five days" (Frontline, November 15, 1996). Justice K. Ramaswamy's dissenting judgment, at the time largely ignored, when not disapproved of, had a prescient quality. "A floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or volitional captivity of legislators," he warned.

In the absence of a more objective and manageable alternative, however, floor tests continue to be the sole practical means of establishing majorities - with an exception made for the rarest of rare cases, covering virtual civil war conditions. The suggestion that the Kalyan Singh Ministry should be dismissed and the Assembly placed in suspended animation until the dismissal was ratified by Parliament (as Bommai mandated), was based on ruthless realpolitik. The calculation that legal challenges would spend years in court was behind Mulayam Singh's powerful play within the United Front to get the Kalyan Singh Government dismissed and the Assembly dissolved. The Bommai framework permitted the Governor to bypass the requirement of a floor test only in the event of "all-pervasive violence", or other factors ensuring that the Government of the State could not be carried out in accordance with the Constitution. Although Bhandari's reports did speak dramatically of the possibility of "bloodshed" in the State, they seemed wide of the mark. The Governor's conclusions on who was responsible for the violence on the floor of the Legislative Assembly seemed to be contradicted, unwittingly, by the narrative in the observers' report forwarded by the Governor. There was also doubt that Bhandari was acting, to borrow from Justice Ramaswamy's dissent, in an "umpire's role".

WHAT standard does Bommai lay down for a proper determination that the constitutional machinery has broken down? The judgment of Justices Sawant and Kuldip Singh suggested that "a situation of impasse" should have developed. There had to be a "legal inability as well as (the) physical impossibility" of governance according to the Constitution. "Hence situations which can be remedied or do not create an impasse or do not disable or interfere with the governance of the State according to the Constitution would not merit the issuance of the proclamation under the Article."

Justices Jeevan Reddy and Agarwal, with whom Justice Pandian expressly concurred on this point, held a similar opinion: "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)" (emphasis added). Thus, the majority in Bommai sanctioned dismissal of a State government only under the most extreme circumstances. Clearly, by this test, the violent incidents in the Uttar Pradesh Assembly, however offensive they might have been, did not suggest a "physical impossibility" of governance according to the Constitution.

What situations might warrant the dismissal of a State government without a floor test? In response to this larger question, the BJP and their largely fellow-travelling media have been conspicuously selective in their readings of Bommai. The only issue on which all nine Judges agreed, albeit by varying processes of reasoning, was the dismissal of the four BJP State governments in the wake of the demolition of the Babri Masjid. Bommai held with powerful unanimity that they were justly dismissed for going against the constitutional philosophy and provisions that were decisively secular. Secularism, they reiterated full-throatedly, was part of the basic structure of the Constitution, which nobody could take away and hence (in Soli Sorabjee's words) the "far-reaching proposition that violation of basic feature of the Constitution, including the secular features of the Constitution, is a valid ground for exercise of power under Article 356." The proposition had been argued sharply before the court. Its opponents had contended that since the basic feature doctrine evolved by the Supreme Court cannot be used to test the validity of legislation (as opposed to constitutional amendments), it most certainly could not be used to legitimise an exercise of power under Article 356. This contention was rejected by the court and what emerged was a radical affirmation of the inalienable secular content of Indian constitutional democracy. Hardly anyone has referred to this vital aspect of Bommai in the present context, where a central player is the very man who headed the State administration when the Babri Masjid was demolished and is now facing prosecution for complicity in that crime.

THE understanding of secularism in Bommai is perhaps best expressed in the judgment of Justices Sawant and Kuldip Singh. "Religion," they asserted, "cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. The state's tolerance of religion or religions does not make it either a religious or a theocratic state. When the state allows citizens to practise or profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious or secular activities of the state." What constitutes a violation of secularism under the Constitution is spelt out in the judgment of Justices Jeevan Reddy and Agarwal: "Under our Constitut-ion, no party or organisation can simultaneously be a political and a religious party (original emphasis). It has to be either. Same would be the position if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party " (emphasis added).

Such startling clarity of perception has, sadly, not provoked any parallel legislative processes in India. What is even worse, what can be directly enforced from Bommai against communal and anti-secular political players has been ignored in political India. The challenging prospect that Bommai raised of delegitimating communal parties like the BJP, the Muslim League and the Akali Dals has begun to look more and more remote. But in the months and years to come, the relevance of this issue must be understood by secular-democratic political parties.

Without prejudging the outcome of Chief Minister Kalyan Singh's trial for crimes related to the demolition of the Babri Masjid, the fact remains that the BJP is a party wedded to Hindu supremacism and to communalism as a political mobilisation strategy. Its leaders, and those of its affiliates in the Sangh parivar, have recently spoken of the need to renew both the Ram Janambhoomi agitation and the issues of Mathura and Kashi. If and when the time comes, Bommai must again be deployed, to protect the constitutional commitment to secularism. That action may well require more courage and conviction than allowing Kalyan Singh the floor test mandated by a reading of one part of Bommai.

Finally, a question. How would President Narayanan have responded had the Governor's reports and the Cabinet recommendation made out a serious case for the application of Article 356 against the Kalyan Singh dispensation for being anti-secular, majoritarian and communal?

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