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Time For Modi to Ponder Over His Legal Team

Prakash Nanda

Updated: July 19, 2016, 1:52 PM IST
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Time For Modi to Ponder Over His Legal Team
In a house of 60, BJP claims the support of 43 MLAs.

Thanks to judicial interventions, the Congress has been able to save two of its state-governments – first in Uttarakhand and then in Arunachal Pradesh. Obviously, the party is elated and has every reason to score political points over the BJP in general and the Modi government in particular. Going by the lead writers and television anchors in the national media, the Congress is a clear winner.

Perceptions do play a very critical role in politics. Popular perceptions these days suggest that the Modi government has badly managed the developments in both Uttarakhand and Arunachal Pradesh.

A central government having comfortable parliamentary majority could not prevent in Arunachal Pradesh the Congress rebels, who had formed a government with the BJP support, from returning to a party that is literally tottering almost all over the country. It speaks volumes of the political mismanagement on the part of the BJP.

All told, if one looks at the states in the Northeast, all these years it has been an established norm that their governments invariably go with the central government of the day, given their critical dependence on the largesse of Delhi. But in Arunachal, a government with the BJP support paving the way once again for a Congress one is a remarkable development in itself. It speaks very poorly of the political management of the Modi-team.

Every credit must be given to former union minister Kapil Sibal, who snatched the Congress victory from the jaws of defeat when the “judicially-restored” government of Nabam Tuki did not garner a simple majority support in the Assembly. After Tuki resigned before the floor-test, the government led by Kalikho Pul could have easily returned with a comfortable majority with the BJP-support.

This time, the Congress would not have any legal ground to challenge the development. Instead, what happened was that Sibal played a master stroke in persuading Tuki to give up his claim in favour of another rebel, Pema Khandu, so that all rebels return to the Congress fold.

Of course, there are strong merits in the argument that though it has been a Congress victory in Arunachal Pradesh is concerned: but viewed from a different angle, it has been a loss of face for the Congress too.

All told, the party’s fight all these months have been to save the Tuki government. But ultimately, Tuki, despite the Supreme Court’s verdict in his favour, has been unable to save his chair.

The entire exercise also badly exposes the limitations of the Congress-high command in resolving party-dissidence in the states. Had Tuki been replaced in 2015, there would have been no rebels for the BJP to fish in the troubled waters and there would have been no interim-government led by Pul.

Secondly, and this is very important, while the constitution-bench of the Supreme Court restored the Tuki government, it in the process, made a critical observation on the dirty role played by the Arunachal Speaker Nabem Rebia in flouting all constitutional norms to ensure the survival of the Tuki government.

If democracy is a rule by the majority in the legislature, neither Tuki in Arunachal nor Harish Rawat in Uttarakhand did have that majority after the rebellions by the Congress legislators. They were helped by the respective Speakers in the two states who abused their authority to disqualify the rebels so as to bring the legislative strength of the House.

If Rawat continues to be the Chief Minister in Uttarakhand, it is precisely because the Court has not yet decided on the fate of some rebels who stand disqualified at the moment.

I personally feel vindicated as I had written once in this very column the importance of Having non-partisan Speakers.

In Uttarakhand, there were nine Congress rebel MLAs. Till their “disqualification” by the Speaker Govind Singh Kunjwal, these rebels had not left the Congress party. Legally speaking they had not voted against the party inside the Assembly by violating the Congress whip. It is true that they wanted division for passing the budget, but the Speaker, and it is unprecedented, declared the budget “passed” without voting.

These rebels definitely would have invited the anti-defection provisions had they been allowed by the Speaker to vote along with the opposition BJP against the budget.

But, had they been allowed, the Congress government would have also fallen that day as it would have been reduced into minority (the nine rebels along with BJP’s 28 in a house of 70 would have reached the number 37 and easily defeated the budget, and the government was bound to resign with the defeat of a money bill like the budget).

In Arunachal Pradesh, the crisis began following factionalism in the Congress that had 41 legislators in the 60-member House. As many as 21 dissidents wanted a new chief minister in place of Tuki. They were supported by 11 MLAs belonging to the BJP.

Obviously, Tuki did not enjoy the majority. But Rebia disqualified 16 Congress dissidents even though till their "disqualification" they had not left the party or defied the party directive inside the Assembly to come under anti-defection laws.

Importantly, both in Uttarakhand and Arunachal, the Speakers disqualified opponents of the Chief Ministers, even though both of them were facing no-confidence motions against them. Against this background, the observation of the five-judge-bench judgment of the Supreme Court on Arunachal crisis is significant.

The verdict underlined that Assembly Speakers – when faced with a precarious situation such as a resolution for removal – must demonstrate their right to continue in office by winning majority support in the state legislature. “When there is an expression of intention to move a resolution for removing him (the Speaker), it is requisite that he stand the test and then proceed,” the verdict said. It added that the Speaker’s conduct must not only be impartial, but also perceptible in its impartiality.

Noting that the Speaker was tasked with ensuring that the business of the House was carried out in a decorous and disciplined manner, the verdict said: “This functioning requires him to have unimpeachable faith in the intrinsic marrows of the Constitution, constitutionalism and ‘rule of law’, and that "when there is an expression of intention to move the resolution to remove him, it is requisite that he should stand the test and then proceed. That is the intendment of Article 179(c) and the said interpretation serves the litmus test of sustained democracy founded on Rule of Law...It would be an anathema to the concept of constitutional adjudication, if the Speaker is allowed to initiate proceeding under the Tenth Schedule (disqualification on ground of defection) of the Constitution after intention to remove him from his office is moved.

In my considered opinion, if the Supreme Court’s verdicts, be it in Arunachal or in Uttarakhand, eventually went in favour of the “minority Congress governments”, it was precisely because the Modi government, in defence of its decisions to impose President’s rule, overemphasized on the “Power of the Governor” and totally neglected the “partisan role of the Speaker”.

It so happened that in both the cases, the court was not convinced and underscored that a Governor must function within the country’s constitutional framework. Who knows what would have been the results, if Modi’s legal team had emphasised on the abuse of anti-defection laws by the concerned Speakers.

The moral of the story, thus, is that the legal-team of the Modi-government has fared poorly so far in almost all the crucial constitutional cases - be it on the appoint of Judges or on the issues pertaining to Uttarakhand and Arunachal Pradesh. Well, Modi now has a new Law Minister. But what about the top legal officers representing his government in the Courts? It is time for Modi to ponder over this question.

First Published: July 18, 2016, 11:27 PM IST