The BJP’s rush to become the dominant political entity across India appears to be proving increasingly a double edged sword for the Modi regime. Chastised by the country’s premier judicial body twice in succession within a few months for violating both the federal and democratic character of the Constitution the Central government finds itself in a spot. The ruling party establishment would require doing a fair degree of damage control to repair its strained relationship with the judiciary and regain its moral authority over states ruled by non-BJP parties.
It was bad enough when just two months ago the Supreme Court ignoring the pleas of the Centre helped nullify the toppling of Chief Minister Harish Rawat-led Congress government in Uttarakhand allowing him to win a confidence vote in the assembly despite the imposition of President’s Rule. But this week’s Arunachal Pradesh judgment by a five-member Constitution Bench is far more devastating. It has in an unprecedented intervention even more momentous than the landmark Bommai judgment rolled back a series of decisions taken by the state Governor Jyoti Prasad Rajkhowa from last December knocking out the BJP supported Kalikho Pul regime and reviving the seven month stale corpse of the Congress government led by Nabam Tuki. Unlike in the case of Uttarakhand the learned judges have also passed severe strictures against Rajkhowa for overstepping his constitutional mandate using such harsh language perhaps never before used by any court against an incumbent governor.
The main judgment delivered by Justice Jagdish Singh Khehar who headed the five-member Constitution Bench has gone well beyond the Bommai judgment which 22 years ago sought to limit the indiscriminate use of Article 356 to topple elected governments quite prevalent till then. Indeed in the case of Arunachal Pradesh, the Supreme Court has gone out of its way to drive further two key guiding principles laid down by the Bommai judgement – the majority of a government can only be tested on the floor of the Assembly and that a political crisis or administrative lapse was not tantamount to a constitutional breakdown which alone could justify the intervention of the governor on behalf of the Central government.
Justice Khehar in no uncertain terms castigated the state Governor for both interfering in the functioning of the legislature and getting embroiled in the internal turmoil of a political party thereby taking a series of decisions all held to be invalid resulting in the restoration of status quo ante of seven months ago erasing in one stroke the five-month old rebel Pul government.
Even more damaging is a concurrent but separate judgment delivered by Justice Khehar’s fellow judge Madan Lokur who did not mince his words while lambasting the Governor. “To make matters worse and, in a sense, humiliate the elected government of the day, the Governor did ignore the resolution of the Council of Ministers taken on 14th December, 2015 when it was placed before him. By this time there was a complete break-down of communications between the Governor and the elected Government and that, among other things, led to an unsavory confrontation between the Governor and some Cabinet Ministers. That interpersonal relationship of constitutional functionaries is carried out with such a complete lack of cordiality and gay abandon is indeed unfortunate. The result is a thrashing given to the Constitution and a spanking to governance. It is precisely to avoid this that the Constituent Assembly invoked the "principle of responsible government."
It is significant that none of the judges on the five-member bench gave any credence to the Governor’s bid in his letter to President Pranab Mukherjee to justify his action by claiming that there was indeed a constitutional breakdown claiming personal danger from Congress supporters to him and his family. Nor did the court take seriously his bizarre and thinly veiled charge that a cow had been slaughtered in front of the Raj Bhavan gates as another instance of a breakdown in the constitutional machinery.
The court’s sweeping indictment of the Governor has made his continuance in office virtually untenable.
Significantly Rajkhowa two days before the judgment abandoned his post and got himself admitted to hospital. This suggests that the Modi government had got a hint in advance of the adverse nature of the Supreme Court. Ironically New Delhi has pushed as a replacement the Tripura Governor Tathagata Roy known for his eccentric and controversial remarks.
The Prime Minister and his party could choose to turn their back to the reprimands of the Supreme Court and bluster its way through by ensuring that the restored minority Congress government loses the confidence vote this weekend in Arunachal Pradesh. According to BJP sources, the mood in the top party leadership is of defiance and even as it paid lip service to the supremacy of the Supreme Court preparations were on a war footing at the launch of the North East Democratic Alliance to snatch back power from the restored Congress government in the state.
Yet regardless of whether the BJP succeeds or not in destabilising the Congress in one state after the other the Modi government by throwing constitutional norms to the winds to achieve this objective is doing so at its own peril. This has increasingly pushed it in open confrontation with the judiciary whose cooperation will become more and more important to the Prime Minister in the second half of his term. Interestingly Justice Khehar is scheduled to be the next Chief Justice of the country.
The other downside to a purely muscular approach to getting rid of Congress governments by hook or by crook is that such political skulduggery spooks not only the Congress but a whole range of regional parties whose support Modi will require in the coming months and years. Sensing the danger to the federal nature of Indian democracy from such highhanded maneuvers of the Centre reminiscent of the Indira Gandhi days there is bound to be both suspicion and hostility from a variety of non-BJP governments across the country.
Ironically, much of the BJP’s strong arm methods to marginalise the Congress that has antagonised the judiciary as well regional parties was quite unnecessary. Both in Uttarakhand and in Arunachal Pradesh, the Congress was collapsing under the weight of local contradictions and a lack of national leadership. If the BJP had the patience to let the Congress destroy itself it would not have given a moral victory to the rapidly sliding party or put itself in the dock on the eve of the Monsoon Parliament session.