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Written by: Prof. Bhim Singh, Sr. Advocate in Supreme Court

Category: ARTICLES

Published: 01 April 2016

The norms and the principles laid down in the Constitution have been betrayed by the men who matter in the North & South Blocks, New Delhi. Uttarakhand episode shall be a living example how the mandate of the Constitution and rule of law has been hijacked by the South Block with an intention to grab power by hook or crook in a state governed by the political party other than the BJP. What happened in Uttarakhand governed by the Congress party needs an objective analysis by the legal Pundits who have been watching performance of the Modi government at the Centre.

Firstly, this is important to have a look into the composition of the political parties inside the Legislative Assembly of Uttarakhand. The Assembly has 70 elected Members. One MLA is nominated from the Anglo-Indian community in the State. The total number was 71. The Congress had 36 MLAs and naturally the government was run by the Congress Party under the leadership of Shri Harish Rawat, a veteran and honest leader of the party. The BJP’s masters in Delhi conspired to topple the government in the Himalayan States for the reasons to expand their RSS bases. Assam is going to the polls. Manipur is in trouble. Uttarakhand has faced the wrath of Modi rule in the Centre. Assembly elections were due after about 12 months in Uttarakhand but the BJP was in a hurry to topple Harish government so that the Assembly election could be held under Modi rule for the reasons which need not any explanation at this moment.

This is pertinent to understand the logic and the parameters defined in Article 356 of the Indian Constitution to impose President’s Rule in any state, the President needs subjective satisfaction before he shall dislodge a state government under Article 356. There are instances when the President may intervene under this Article. If there is external aggression or internal disturbance and the state government is not capable to carry on in accordance with the provision of the Indian Constitution. This is mandatory that the President should be satisfied that a government in the state concern cannot be carried on in accordance with the provisions of the Constitution. It is only after the subjective satisfaction of the President that he can impose President’s Rule in a state.

In the present case, there was no emergency involved in the state. There was no law and order problem. The government was running perfectely in accordance with the legal jurisprudence essential for a government to function. The Governor of the State has also fixed March 28 for the Legislative Assembly to test whether Mr. Harish Rawat/Congress Party enjoy majority in the Assembly. A Division Bench of the High Court could not be justified in postponing date of majority test which was fixed by an appropriate/ constitutional authority the Governor of the State. This decision of the High Court of Uttarakhand suffers from justiciability. The President should have overruled the faulty order of the High Court and allowed the sitting of the House as per decision of the Governor of the State.                                                                    

To implement Modi’s policy to dislodge secular governments in the States, it managed to buy 9 MLAs of the Congress Party with an intention to take over power in the Himalayan State where Panduvas ruled nearly 5000 years back. The first blunder which the leadership under Prime Minister Modi committed was an utter violation of the Defection Law. Nine MLAs could not be rescued under any imaginative stance of legal norms and the Defection Law. It was not a split. Not even 1/3rd MLAs could be bought or lured by the Modi power or money. Nine MLAs could not be defended under any legal norms or rule. It was only Modi rule that defended them. The Speaker of the Legislative Assembly, Mr. Govind Singh Kunjwal was fully competent and absolutely empowered under the Defection Law enacted by the Parliament (applicable to the State of Uttarakhand except J&K) to expell the nine defecting MLAs from the Legislative Assembly. This Order of the Speaker could be challenged before High Court but there is no legal authority with the High Court to restore the status of the disqualified 9 MLAs.

The present status in the Assembly has to be viewed with clear spectrum of constitutional mandate. There are (71-9 MLAs = 62). The Chief Minister, Shri Harish Rawat needs 62/2 +1  = 32. The Governor had fixed floor test on March 28, 2016 to decide whether Shri Harish Rawat enjoyed the majority. One MLA is nominated from the Anglo-Indian community namely Mr. Russel Valentine Gardener who has no voting right which is settled rule in the business of Parliament. That shows that Shri Harish Rawat needed only 31 MLAs to prove his majority, in the Assembly. Shri Harish Rawat has 27 sitting MLAs and support of 6 other MLAs from small groups etc. Shri Harish Rawat therefore has on this day, 1st April, 2016, 33 MLAs. The Speaker being the Presiding Officer holds the mandate to decide the issues within the Legislative Assembly in respect of the proceedings within the Assembly. This is settled law. 

The legality of the declared to adjourn the Assembly session on 28th March was illegal and malafide, a Division Bench of the Uttarakhand High Court is not only under question but cannot be accepted by any measures or the scope of the Constitution. The High Court could not have deferred the floor test from March 28 to another day after a week. This Order of the High Court could not be justified by any stretch of the imagination as it violated the principles of natural justice, rule of law and even the credibility of the judicial standards. The Congress leaders had erred in the first instance to go to the High Court which is far away from Dehradun and located in a difficult terrain in Nainital. Secondly, the Congress legal barons should have consulted the leading men in profession like Shri K.Venugopal and Shri Ram Jethmalani.

 

The Congress legal advisors failed to comprehend the situation which was being directly monitored by Shri Narendra Modi, the super man, in the Central government. This matter may come next week before the Supreme Court on a petition filed by Shri M.L. Sharma, Advocate which has questioned the Presidential Proclamation which was imposed in Uttarakhand. The Supreme Court may consider the issues which have emerged following the Uttarakhand episode. Yet the important point of law shall remain unanswered how Uttarakhand was placed under President’s Rule, once the Governor of the State had directed to hold Assembly session to give an opportunity to Shri Harish Rawat to prove his majority on March 28. S.R. Bommai’s decision of the Supreme Court of March 11, 1994 has been squeezed by a Division Bench of the High Court of Uttarakhand by overruling the decision of the Governor of the State to hold Assembly session on March 28. This is mockery of the law and betrayal of the mandate of the Constitution of India. Can Prime Minister Modi defend himself in the present case of Uttarakhand?