The BJP’s ability to score self-goals remains undiminished even after receiving hard knocks in Delhi, Bihar, and elsewhere. A small success in changing the Arunachal Pradesh government appears to have emboldened it to try its luck in Uttarakhand, where elections are anyway due next year. What possessed the party to try and fish in troubled waters when the Congress-led government under Harish Rawat was imploding under its own weight? What was the hurry to form a government with defectors, when the state could well have fallen into its lap next year?
On Thursday, the Uttarakhand High Court delivered a sharp rap on the knuckles when it restored Rawat to the throne and asked him to face a floor test by 29 April. The BJP is moving the Supreme Court, but it would be more sensible to cut its losses and focus on defeating the Rawat government on the floor of the assembly to claim vindication.
The court was certainly right to uphold the basic principle that governments should be asked to prove their majority in the legislature, but it went overboard in trying to make this sound like some kind of existential crisis of democracy, when it is essentially about two players playing in the muck, with neither playing by the rules prescribed by the Supreme Court in the Bommai case. In the Bommai case, the court held that governments must stay or fall based on what happens in an assembly vote. They can’t be dislodged through manoeuvres in Raj Bhavans or in Delhi.
The Uttarakhand High Court Bench headed by Chief Justice KM Joseph made this observation, as quoted in The Times of India: “The soul of the matter is whether it is open to the Central government to get rid of state governments, supplant or uproot the democratically-elected government, introduce chaos, undermine (the) confidence of the little man who stands with a white paper to cast his vote braving the snow, heat and rain.”
The answer to the first part of its order is “no, the centre should not be toppling elected state governments.” The second part of the order, about introducing “chaos” and “undermining the confidence of the little man who stands with a white paper to cast his vote, braving the snow, heat and rain” is just poetic licence, and largely unreal in the Indian context.
The Indian voter is very mature, and trying to make her (and not just him) sound like some kind of hapless victim of cynical politics is false. If Justice Joseph had only cocked an attentive ear to note the kind of freebies, dog-whistle rhetoric and violence being talked about or played out in the ongoing state assembly elections, he would know that the Indian voter is willing to accept cynical bribery as a substitute for real governance. The highly contested Indian election is not about innocence or holy democratic principles. And factually, there is no white paper involved in casting a vote, with paper ballots having been replaced with EVM machines years ago.
Justice Joseph also had this to say: “We are of the view that be it suspension or dissolution, the effect is toppling of a democratically-elected government. It breeds cynicism in the hearts of citizens who participate in the democratic system and also undermines democracy and (the) foundation of federalism.”
This is broadly correct. However, it is worth making a counter-point: while there is no doubt that backroom manoeuvres to topple governments can breed cynicism, the same can be said about the efforts of parties to stay in power by bribery of MLAs or MPs. The Narasimha Rao government stayed in power in the early 1990s by bribing JMM MPs. But the courts ruled that things happening inside parliament was not in their domain. The Manmohan Singh government sailed through the 2008 trust vote in the face of the cash-for-votes scam. But no court did anything about this scam.
Cynicism breeds in the electorate from all these actions of parties in power and the money that changes hands for votes. As an aside, the citizen also knows that money changes hands in some judicial verdicts. The Indian citizens is nothing is not totally cynical about the system. It is not just politicians, but the judiciary too which is to blame.
In the Uttarakhand case, the specific issues involved sound less savoury that the high principles upheld by the high court.
The facts are something like this: Rawat faced a rebellion within his party, and got his budget passed without a division. The rebels and the BJP claimed the budget was passed illegally without a vote, when a vote was demanded. After passing the budget with the help of the speaker, the latter then disqualified the rebel MLA who might have voted against the budget and brought the government down.
The questions of law are tricky.
First, it is fair to disqualify the MLAs if they had actually voted against the budget, since defying the whip goes against the provisions of the anti-defection law. But when no vote took place, how can the MLAs be disqualified for something they were yet to do? Can you ban someone in anticipation?
Second, if the budget had been defeated, Rawat’s government would have fallen. If it had fallen, the BJP or even the rebels could have staked claim. But if the Congress had disqualified the MLAs based on their vote against the government, it is the new government that would need to face the trust vote, albeit minus the disqualified MLAs.
What the Uttarakhand High Court adjudicated was to decide for or against one kind of hanky-panky versus another. And the issue of disqualification of MLAs is yet another case to be decided.
But the High Court was absolutely right on one thing: who rules a state depends on winning an assembly vote. The governor should have asked Rawat to face a trust vote in view of uncertainty about whether the budget was passed through a proper vote. Even now, that is the only solution.
The BJP would do well to try to win this vote, and not try and delay the inevitable by moving the Supreme Court.