Thursday, 28 May 2020

On Bhardwaj’s Recommendation UPA Government Moves Cautiously

Updated: June 4, 2011 1:11 pm

The UPA government is in a dilemma. On the one hand, it has to take a decision on the judgement of the Supreme Court, on the basis of which Karantaka Governor HR Bhardwaj called the Yeddyurappa government in Karnataka illegal and recommended the imposition of President’s Rule. On the other hand, it is worried about the political ramifications of dismissing a state government, and whether the decision can be carried in the Rajya Sabha, with the support of some regional groupings or whether the government may have to face embarrassment if it is not carried.

            Deciding to adopt a wait-and-watch attitude, the central government has decided to allow speculation to continue. Sources say that till such time it tests out the mood and response of the smaller parties, including its own allies, it is likely to let the BJP sweat it out in the 40-plus temperature in Delhi and keep the sword of Damocles hanging over its head.

            Sources say that so far no decision has been taken by the centre and this has been conveyed to the Karnataka Governor Bhardwaj by the Home Ministry. He has been told that the government is looking at various options including moving a presidential reference to the Supreme Court, asking them to clearly spell out what course of action is open to the government—in a state government that has been declared illegal, dismissing the Karnataka government under Section 356, putting the Assembly in suspended animation and then the Governor invites the single largest party to form the government. This, sources say, would ensure that the Supreme Court judgement has been honoured and action taken and at the same time allow them to form the government again.

            While Governor Bhardwaj is known to have very few backers in the Congress and the central government, it is a known fact that he has the full backing and support of the Prime Minister Dr Manmohan Singh, whom he met in Delhi the day before he submitted his report to the centre. Sources said Bhardwaj is known to act on his own, as he considers himself to be a highly competent legal expert but the Congress-led government at the centre is looking past the legal aspects to the political situation, which may be created by the BJP, if its government is dismissed.

            Highly placed sources in the government state that the Governor Bhardwaj has sent a report to the government, where he has said that in the wake of the Supreme Court judgement, the continuation of the Yeddyurappa government is “constitutionally untenable”. Nowhere is the Governor questioning the numbers which may be with the Chief Minister and whether he has a majority or not. The Governor is simply going by the judgement of the apex court and leaves it to the Centre to take a final call after he gives his advice, said sources in the government.

            While no tears are being shed for the Yeddyurappa government, the government got a shot in the arm, when the CPI (M) leader Prakash Karat virtually backed the reading of Bhardwaj, saying that while his party is not a supporter of Article 356, in this case the continuance of the Karnataka government has become a big question. This is being read in the government as Karat’s way of saying that the left may walk out of the house on the voting of imposition of President’s Rule—which also favours the government as it reduces the number.

            The government is hoping to create an atmosphere by which more and more regional parties would come out against the BJP government, based on the strong judgement delivered by the Supreme Court. Sources say that while this would keep the BJP isolated, it would also give the government support as well as numbers in the Parliament, particularly in the Rajya Sabha if it were to move ahead to dismiss the government and impose President’s Rule in the state. It has been made clear to Bhardwaj that the government will not dismiss the Yeddyurappa government, till such time it is comfortable that the numbers are with it and that it will not be embarrassed in the Parliament. The UPA does not want a repeat of the Bihar situation.

            A senior leader said that one of the biggest obstacles is that the dismissal of the government would have to be ratified in the Parliament, where the situation is tricky for the ruling UPA. A number of regional parties are dead set against 356.

            The BJP, which has mobilised its complete propaganda machinery to launch an attack on the centre and demand the dismissal of the Karnataka Governor, has met the Prime Minister Dr Manmohan Singh under the leadership of LK Advani. The Prime Minister assured the BJP delegation that nothing unconstitutional would be done, which is significant since the BJP government is now skating on very thin ice, bordering on being illegal and unconstitutional. The Chief Minister has paraded 114 MLAs before the President, as it works to generate heat and dust in the already stifling heat of the capital.

            The Congress spokesman Manish Tewari who launched strong attacks against the Chief Minister and Speaker of Karnataka Assembly, by calling their continuance illegitimate and asking for their resignation, said: “Is a floor test correct when we are dealing with an illegitimate government?” The judgement makes some very strong remarks against both the Speaker and the Chief Minister.

            At one point it says: “We are constrained to hold that the proceedings conducted by the Speaker on the disqualification application filed by BS Yeddyurappa, do not meet the twin tests of natural justice and fair play.” It goes on to add: “Unless it was to ensure that the trust vote did not go against the Chief Minister, there was no conceivable reason for the Speaker to have taken up the disqualification application in such a hurry.”

            The Congress says this has raised some very basic questions of whether the Chief Minister and the Speaker have the moral right to continue even for a single moment, after the observations of the Supreme Court on their conduct.

            Congress spokesman Manish Tewari said that from October 11, 2010, the BJP has been running an illegal government based on a manufactured majority, which was obtained by the abuse of constitutional office.

            But the Congress says, no one is questioning the numbers in favour of the BJP government in Karnataka. What is in question is whether the clock can be turned back and can time be frozen? The Home Ministry says it is looking into the judgement and, in the meantime, it is happy that the Congress has put the Karnataka Chief Minister and Speaker on the mat and asked for their resignation.

            Bhardwaj, who is seen to be unhappy at the delay by the centre in accepting his recommendation, has issued a lengthy press communiqué where he explains the rationale behind his recommendation that President’s Rule be imposed in the state. He has basically struck back against his opponents, who have once again charged him for going too far. These opponents are as much in the Congress party as outside.

            Bhardwaj said in a press communiqué: “The intervention under Article 356 (1) of the Constitution of India is not limited to a situation of government losing its majority in the Assembly. The intervention is called for whenever there is breakdown of constitutional mechanism in the state.”

            The Governor detailed the sequence of events leading up to the floor test in the Karnataka Assembly in October last year, and pointed to portions of last Friday’s Supreme Court order on the disqualification of 16 MLAs, to conclude that there had indeed been a breakdown of the constitutional mechanism in Karnataka.

            ”The … actions of distorting the character of the Assembly were resorted to by the Chief Minister and the Speaker, as noted by the Supreme Court of India in its judgement, to enable the floor test to succeed. The sanctity of the floor test has been deliberately subverted, thereby, resulting in the breakdown of the constitutional mechanism,” the Governor’s note said.

            Governor Bhardwaj’s press communiqué says: There have been several misgivings created in the minds of the public about the nature and the rationale for submission of a special report by the Governor of Karnataka to the President of India on May 15, 2011. Therefore, to remove the misgivings in the minds of the people and to take the citizens of Karnataka into confidence, His Excellency the Governor of Karnataka clarifies the following points.

            First of all an impression is being created that despite the government enjoying the support of the majority of the members of the Legislative Assembly, Governor submitted the report for invoking the provisions of Article 356 (1) of the Constitution on the grounds that the government lost the majority. This is completely baseless.

            The intervention under Article 356 (1) of the Constitution of India is not limited to a situation of government losing its majority in the Assembly. The intervention is called for whenever there is breakdown of constitutional mechanism in the state. The breakdown of constitutional mechanism also can occur in several other ways.

            However, in the instant case though the origins of the breakdown can be traced to the question of support enjoyed by the government, the actual breakdown is due to tampering with the composition of the Legislative Assembly in unconstitutional manner.

            The Supreme Court in SR Bommai vs Union of India (1994) 3 SCC held: “Proper course for testing the strength of the ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum of seeking openly and objectively the claims and counter claims in that behalf.”

            On October 6, 2010, 18 MLAs, who were earlier supporting the Chief Minister Yeddyurappa, submitted individual letters to the Governor of Karnataka, withdrawing their support to the government headed by Yeddyurappa. The Governor of Karnataka advised the Chief Minister to establish on the floor of the House that he enjoys the support of the majority of the members of the House by October 12, 2010. The floor test was scheduled for 11am on October 11, 2010.

            The Speaker of the Karnataka Legislative Assembly in collusion with the Chief Minister distorted the character and composition of the Assembly for extraneous reasons on October 10, 2010, by disqualifying 16 members of the Assembly just hours before the crucial floor test scheduled for October 11, 2010.

            Hon’ble Supreme Court of India in its judgement dated May 13, 2011, on these disqualifications held, amongst other things: “Unless it was to ensure that the Trust Vote did not go against the Chief Minister, there was no conceivable reason for the Speaker to have taken up the Disqualification Application in such a great hurry.”

            “We are constrained to hold that the proceedings conducted by the Speaker on the Disqualification Application filed by Yeddyurappa, do not meet the twin tests of natural justice and fair play. The Speaker, in our view, proceeded in the matter as if he was required to meet the deadline set by the Governor, irrespective of whether, in the process, he was ignoring the constitutional norms set out in the Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention of the basic principles that go hand-in-hand with the concept of a fair hearing.”

            “Extraneous considerations are writ large on the face of the order of the Speaker and the same has to be set aside.”

            The above actions of distorting the character of the Assembly was resorted to by the Chief Minister and the Speaker, as noted by the Supreme Court of India in its judgement, to enable the floor test to succeed. The sanctity of the floor test has been deliberately subverted, thereby, resulting in the breakdown of the constitutional mechanism, as the Legislative Assembly is a creation of the Constitution under Article 168 of the Constitution of India.

            Though the Governor held the same view even on October 11, 2010, the issue of disqualification remained sub judice till the Hon’ble Supreme Court of India delivered its judgment on May 13, 2011.

            Therefore, after examining the judgement of the Hon’ble Supreme Court and its implications and the various other developments in the recent months, the Governor submitted a special report to Her Excellency the President of India on May 15, 2011, recommending invoking the provisions of Article 356 (1) of the Constitution of India.

            Whenever such a situation arises, it is the constitutional responsibility of the Governor to submit the report on all such matters. Governor is of the view that this is a matter on which the appropriate constitutional authorities have to take the decision on the recommendation of the Governor and it is not a matter that can be resolved on the streets.

By Renu Mittal

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