Uttarakhand is facing a constitutional crisis. We may blame the Congress for its failure to keep its house in order and check the rebellion by a section of its. That is beside the point. The Uttarakhand High Court Division Bench of Chief Justice K M Joseph and Justice V K Bist is categorical that the imposition of President’s Rule on March 27, a day before the Governor ordered the floor test, was a ‘‘colourable exercise of power,’’ implying mala fide intention.
What was the hurry? Why was the Governor’s order of March 18 to the Chief Minister Harish Rawat not honoured? The Prime Minister, who did not consider it necessary to call a cabinet meeting even in the face of terrorist attack on the Pathankot airbase, had convened an emergency cabinet meeting late in the night on March 26 to discuss the Uttarkhand situation. What was the emergency when the floor test was due just two days later on March 28?
Arun Jaitley has defended the imposition of President Rule in the state. He said: ‘‘There were very good grounds for the Union Cabinet to recommend President’s Rule. The Chief Minister had lost majority on March 18th and his continuation was unconstitutional and immoral…There was complete breakdown of the Constitution in Uttarkhand.’’ He further claimed that with the nine rebel Congress MLAs, along with the 27 BJP MLAs, demanding a division of votes on the Appropriation Bill, it could be inferred that the Rawat government had lost majority. The Speaker of the Assembly, however, stated that the Bill was passed by voice vote. Jaitley maintained that this was illegal.
The Speaker had served notices on the nine Congress rebels to show-cause why they should not be disqualified, as per the provisions of the Anti Defection Law contained in the 10th Schedule of the Constitution. If the nine rebel members were allowed to join the BJP and demand ‘division of votes’ on the Appropriation Bill, then what is the relevance of the Anti Defection Law? It would defeat the very purpose for which it was enacted, will encourage horse trading and defections, and render the elected governments extremely vulnerable. Eventually, it will lead to perpetual political instability across the states.
It was the fear that the Speaker may disqualify the nine Congress rebels that forced the Union government to impose President’s rule. It was an attempt to pre-empt the Speaker’s action before the floor test. As expected, the Speaker has disqualified the nine rebels. Crossing over to the opposition is permissible only when two-third of the elected members switch over by splitting the party.
The best way would have been to allow the floor test before imposing President’s rule. The Rawat Government could have been defeated and would have fallen if the majority of the MLAs voted against the vote of confidence. It was surprising that President Pranab Mukherjee — a seasoned veteran politician himself – took Jaitely’s briefing at face value. He could have counseled the government on the need to show restraint and waited at least for a day before signing the Proclamation. The President — the custodian of the Constitution — is expected to exercise his political wisdom and act without fear or favour.
The Constituent Assembly debates on the Article 356 clearly state that ‘the President, who is endowed with all the powers, will take proper precautions before actually suspending the administration of the provinces…’ Article 356 reads: ‘If the President is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, he may issue the Proclamation bringing the state under President Rule.’
Did Pranab Mukherjee really think that, a day before the vote of confidence, there was a total ‘failure of constitutional machinery’ in Uttarkhand? Will he accept moral responsibility and resign from the office, if the court declares the imposition of President’ Rule mala fide and void ab initio in its next hearing on April 6?
The nine-judge Constitution Bench in the S R Bommai case in 1994 had categorically held that ‘the floor test is the best way to determine whether a Chief Minister has lost the confidence of a House’ Harish Rawat was not given a chance to prove his majority, due to the machinations of the ruling dispensation. The SC Bench observed that it was for ‘the governor to summon the Assembly and call upon the CM to establish that he enjoyed the confidence of the House…there is no question of the governor making an assessment of his own.’ That is exactly what Governor K K Paul did when he asked the CM on March 18 to seek the vote of confidence. How could he then send a report that there was ’constitutional breakdown’ in the state, a day before the floor test, in violation of his own order.
The apex court also observed that ‘‘if the proclamation is freely made then the CM of every state who has to discharge his constitutional functions will be in perpetual fear of the axe of proclamation falling on him.’’
