KARNATAKA GOVERNOR HR Bhardwaj is either a hatchet man or an embarrassment to the Congress party or both. On 15 May, he sent a recommendation to impose President’s Rule in the state. After the Supreme Court’s decision in the SR Bommai case (1993), there was good reason to believe that the horrible days of using President’s Rule to destroy federalism and state democracy and using stooge Governors was over. Bhardwaj exemplifies the contrary.
The Bhagwan Sahay Committee (1972), Sarkaria Commission (1983) and Constitution Commission (2004) show the corruption of the President’s Rule power under Article 356 of the Constitution. Sarkaria reported nine instances in 1965-69, 19 in 1970-74, 21 in 1975-79 and 18 in 1980-87. By a stroke of the pen, state democracy disappears. What a travesty.
The test for imposing President’s Rule under Article 356 is that the constitutional machinery in the state should break down in fact, not in the Governor’s subjective imagination. Former Karnataka CM Bommai cautioned that the legislature and not Raj Bhawan represents India’s democracy. Bhardwaj undermines the values of federalism and democracy in ways that seem constitutionally perverse. He should be recalled and not given any gubernatorial post ever.
This is not to suggest that the BJP-led BS Yeddyurappa government is not corrupt. President’s Rule was imposed on that ground in Tamil Nadu in 1976 and three years later in Tripura. But these are ignoble precedents. If this rule is applied to Central governments, there would be a constitutional breakdown every month! Democracy and the rule of law must find answers without recourse to Article 356. This is precisely why the Lokayukta controversy in Karnataka (2010) and the Lokpal Bill agitation are important.
Karnataka is the first and only southern state that electorally yielded a BJP-led government. Yeddyurappa’s government is mired in allegations of high-handedness and corruption. In May 2008, it barely got a majority in the 225-member Assembly. Mining in Bellary and scams galore quickened the greedy pulse of those in power.
To understand where the Supreme Court went wrong in May, a narrative is important. On 22 September 2010, two ministers were sacked. Following a revolt on 6 October 2010, four ministers were sacked. Three resigned. Thirteen BJP and five Independent MLAs approached the Governor in a bid to oust Yeddyurappa. On 8 October, Speaker KG Bopaiah issued anti-defection notices. Two BJP MLAs came back to the fold. The remaining 16 were disqualified. Bhardwaj wanted the disqualified MLAs to vote. The Speaker told him to mind his own business. On 11 October, the government won the confidence motion by a voice vote.
Tragedy followed farce. Scuffles prevented the 16 disqualified MLAs from entering the Assembly. Bhardwaj’s recommendation for President’s Rule was rejected. It was disgrace all round. Bhardwaj demanded a new vote. On 14 October, the Yeddyurappa government won again by 106-100 votes. The Karnataka High Court upheld the disqualification saying that the antics of the BJP and Independent MLAs had blown their anti-defection status.
Amid continuing allegations on mining corruption, matters stood still until the Supreme Court’s bombshell on 13 May quashing both the Speaker’s and High Court’s orders. We do not have the full Supreme Court decision, which will come later. The apex court appears to be wrong on two accounts. First, the court indicts the Speaker for taking a hasty decision. This comment gave Bhardwaj political gunpowder to question the confidence vote in October 2010 and claim constitutional breakdown to justify recommending President’s Rule. Neither stance is justified. The Supreme Court ignores that anti-defection situations have to be decided on a tight time leash. In the Mulayam Singh Yadav case (2008), the court insisted that all decisions be taken together. The whole point of a defection challenge disappears if it is not decided immediately with due process hearings. The Supreme Court confused necessary speed with contrived haste. Should the Speaker have waited until after the confidence vote?
Second, the 16 MLAs (including 11 from the BJP) went to the Governor, clearly stating that they wished to rebel against the BJP government to precipitate the crisis. The Supreme Court’s view that the antics of these MLAswere an intra-party fight and not a defection threat, strains credulity. Ever so often, even the best of judges err in their understanding of ground — especially political — realities. Clever wording cannot hide the fact that a political challenge was made to the BJP government’s viability under threat of defection.
But, the Supreme Court judgment has placed the BJP leadership in a quandary. Arun Jaitley has unequivocally criticised the May judgment on similar lines as I have. But his position has a political edge. He wants to justify the BJP ‘confidence’ victory of October 2010 to ensure business as usual. Equally, his stance means that the 11 rebel BJP MLAs are defectors. But the BJP needs these MLAs now even though it managed without them in October!
The truth is that everyone in Karnataka has acted immorally. Allegedly, the defecting legislators were showered with money. When two were coerced back in 2010, the same allegation was made. Money and corruption flowed. It is said that the price was hiked from lakhs to crores. Unfortunately, this is true of so many legislatures in India. Coalition politics exacerbates this vulnerability.
For Bhardwaj to act as a political predator is simply unforgivable. He’s unfit to be Governor
But, what is the solution? One way is to toughen the anti-defection law. This is precisely what Jaitley tried to do as law minister. But the latest Supreme Court judgment shows unwarranted laxity towards defectors. True, legislators are entitled to intra-party dissent. But this was not the case here. Any other view is a blinkered response to the October 2010 crisis. Fine distinctions to save crude subversions to the Constitution are not helpful. The anti-defection law simultaneously deals with political and financial corruption. To dilute it is to destroy it.
THE SECOND solution is Bhardwaj’s threats of President’s Rule in this day and age. He still thinks that he lives in the Indira Gandhi period of misusing the rule. His motives are as perverse as his actions. President’s Rule is an emergency power. Once declared, Parliamentary democracy in the state disappears. Bhardwaj further wants the Assembly to be kept in suspended animation. Why? To open a window for Congress machinations. I have always taken the view that after initial post-election swearing in, the Governor should not insist on confidence votes that are hara-kiri motions filed by incumbent governments against themselves. It is for the Opposition to table no-confidence motions. No Governor should perpetuate this practice of confidence motions during term.
We are caught between the devil and the deep blue sea. A corrupt government has tried to keep itself alive through corruption. The Speaker and the Karnataka High Court responded to this corruption by disqualifying defectors. The Supreme Court reversed the orders of the high court and Speaker on grounds that encourage defection. For the Governor to act as a political predator is simply unforgivable. He is not fit to be Governor and should be recalled.
If the chief minister wants a confidence vote, the Governor should oblige. Meanwhile, all corruption actions against Yeddyurappa, including the Lokayukta’s persistent expose, must continue unrelentingly. No one should be spared.
Rajeev Dhavan is an expert on the Indian Constitution