Well Played, Buta Singh

Click here for the full text of the Supreme Court judgement on Bihar Dissolution case [PDF format]

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In a few days, I will have been a journalist for forty years. Few things that I've read or witnessed have shamed and incensed me more than the grounds that the Supreme Court of India has given for condemning the dissolution of the Bihar assembly and the ordering of fresh elections. Forget for a moment that you are a denizen of Delhi's political fishbowl; forget that Buta Singh is not the most savoury politician you've met, seen or heard of; forget even that you don't like an Italian to drive the country, and from the backseat at that. Imagine that you are a visitor from outer Mongolia on a pilgrimage to the birthplace of the Buddha and then read the Supreme Court's reasons for condemning the Centre "...it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the government only on the ground that the majority has been obtained by offering allurements and bribe (sic).... the extraordinary power of recommending dissolution of a legislative assembly is not a matter of course to be resorted to for good governance or cleansing of politics...."

The lesson our Mongolian visitor will take away with him is that in modern India, bribery and the allurement of a chance to make money are perfectly acceptable ways of forming a government, but preventing their use to do so is definitely against the law. If there is a better way to make an ass out of the law, then I have yet to find it.

The Supreme Court's verdict is the very best argument, if one were needed, for demonstrating why it is absolutely essential to keep the legislature, the executive and the judiciary as far apart as possible. I understand perfectly well the series of steps by which a well-intentioned judiciary has arrived at this absurd demarche. Till the judgement given by the Supreme Court in Bommai vs the Union of India, no clause of the Constitution had been as systematically abused as Article 356. Instead of being used on the rarest of rare occasions, as the makers of the Constitution had intended, a succession of central governments had used it to get rid of opposition governments in the states on no fewer than 105 occasions. In Bommai vs the Union of India, therefore, the Supreme Court had spelt out no fewer than nine sets of circumstances in which Article 356 could not be used. But all of these related to the overturning of a government that had already been formed and had demonstrated its majority in the assembly.

The Bihar case did not fit this mould. Once Ram Vilas Paswan had made it clear that he would not join a BJP-JD(U) alliance under any circumstances, it was obvious that no post-poll alliance could be formed that would command a majority in the house. A government could only be formed by breaking one of the existing parties and that would require a great deal of money, not to mention 'allurement'.

The Centre, therefore, struck a blow for democracy and clean government when it became clear that a majority could only be formed in this most-despicable-of-all-ways. It does not really matter that its own motives were by no means pure. As the court has observed, New Delhi was galvanised into action only when it became clear that the BJP-JD(U) combine was on the point of succeeding in gathering enough driftwood into its camp to form a government. What the Centre did was to refer the issue of government formation back to the ultimate sovereign, the people of Bihar. In November, the voters showed that this was the right thing to do by demonstrating their aversion to horse-trading. They did it by giving the BJP-JD(U) 143 out of 243 seats. Today, Nitish Kumar would be the last person to protest against the Centre's decision.

The Supreme Court has not only been unduly harsh with Buta, but its remarks demonstrate that it does not understand some of the basic principles that underlie parliamentary democracy. I have no quarrel with its finding that Buta was less than scrupulous in the collection of evidence to justify the dissolution of the assembly. But what the Supreme Court does not seem to have understood is that when a government has not been formed, the governor has no need to make a case for dissolution. In such circumstances, he must rely on his judgement. How he arrived at it is a secondary issue.

If Buta erred, it was much earlier. Faced with a hung assembly, he should have asked the leader of the largest party in the Vidhan Sabha to form a government and given him at most a week to prove his majority. Had he failed, he would have been within his rights to ask the leader of the second largest party, and then the third. In fact, under the British parliamentary practice, any one of the leaders he asked would have had the right to recommend the dissolution of the assembly. It would have been up to him to decide whether to accept the recommendation or ask another leader to have a go at forming a government.

The fact remains that when a government cannot be formed or is being formed in the circumstances that do not reflect the mandate of the people, it is the duty of the governor of a state, as it would be of the President of India or of the sovereign in Britain, to exercise his or her judgement on whether to dissolve the legislature or not. This is a sovereign right and cannot be adjudicated.