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In Uttarakhand, the `Jumla' of Cooperative Federalism has disappeared into thin air
"All you have to do, is to see whether the law takes from some what belongs to them in order to give it to others to whom it does not belong. We must see whether the law performs, for the profit of one citizen and to the detriment of others, an act which that citizen could not perform himself without being guilty of a crime. Repeal such a law without delay. ... [I]f you don't take care, what begins by being an exception tends to become general, to multiply itself, and to develop into a veritable system"…….Frederic Bastiat.

In December 2015, while delivering his speech at 'Hindustan Times Leadership Summit,' PM Shri Narendra Modiji had stressed the idea of FEDERALISM in India. He had expressed his opinion about the need for the centre and states to work together to put India on a path of sustained economic growth.

"India is a huge country and it cannot be ruled from Delhi," Modiji said in Hindi at the opening of the two-day Summit. "It's only on the strong pillars of the states that the nation can stand. The states and Delhi should "try to walk together, shoulder-to-shoulder, in the same direction, at an even pace. The results will come soon enough." The concept of cooperative federalism had been a pet theme of the National Democratic Alliance (NDA) government.

Modiji said it was important that state governments and the centre work together to showcase the strength of every state to the world.

Even the skeptics like Bidyut Chakrabarty, a political science professor of Delhi University had appreciated the new approach of PM. "All mature politicians have displayed a centrist approach and pragmatism. Modi is trying to capture the centrist position in politics, which was earlier with the Congress. It seems Modi has realized the diverse nature of India's culture, especially after the Delhi and Bihar assembly election debacles, and is now becoming a more pragmatic politician."

Besides PM's strong pledge to make India Congress-free, Cooperative Federalism was his prominent plank during his electoral campaign. It was a promise that he would usher in a new era for Indian federalism.

Any outsider of the milieu of political theatrics would be informed well that the key element in fostering cooperative federalism is the respect for the mandate of elected governments. To boast and browbeat the weak opposition is not the metal of governance. There are states that are run by opposition parties. They should be allowed to function without fear of collapse and implosion under the tremendous weight, power and clout of centre.

This is a proof if there is genuine desire to flourish the federal character of the nation. A majority in Parliament, the coercive tactics, a clandestine power to offer the cushions is one thing; behaving like the Honest Custodian of Constitution is quite another. Murder of federal polity is too costly a price the nation would be ready to pay. History would demand accountability of acts of willful vibes one day.

What has happened in hill states since BJP came to power is the very antithesis of the federal spirit. A government that brooks no opposition is a most unlikely node for generating federal harmony.

I was not surprised when over two dozen Bharatiya Janata Party (BJP) legislators of Uttarakhand arrived to a grand welcome at the Jolly Grant airport on Monday. The RSS/BJP cadre had massed at the airport exit to welcome the legislators, showering flowers and raising slogans. They had returning after having Jolly Good time while they were been camping in Jaipur, Gurgaon and New Delhi for the last one week since a political crisis erupted in Uttarakhand.

The State BJP president, Teerath Singh Rawat said after his arrival that the state unit was thankful to the President of India for signing the proclamation of central rule in the hill state."We are very thankful to Rashtrapatiji that he acted as the true custodian of the constitution."

Somewhere in the neighborhood, Harish Rawat, the luckless deposed CM met Governor KK Paul along with Congress legislators at the Raj Bhawan. He was saying,"We have come here to show our strength and protest against the decision taken against our government. We should have been given time to prove its majority."

As there is no precedent in Constitutional History of India, to the best of my knowledge,where a elected government was kicked out on the eve of a floor test authorized by the Governor himself, I've except one - the "Supreme Court of India - S.R. Bommai vs Union Of India on 11 March, 1994".

It said - "The constitutional provisions relating to the issue of the Proclamation and as I am in agreement with the reasoning given by B.P. Jeevan Reddy, J., it is not necessary for me to make further discussion on this matter except saying that I am of the firm opinion that the power under Article 356 should be used very sparingly and only when President is fully satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the constitutional balance. Further if the Proclamation is freely made, then the Chief Minister of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State."

In that episode, the Congress government at the Centre had dismissed Karnatak CM on April 21, 1989 after a section of his own party withdrew support to him. Mr. Bommai had taken over as CM on August 13, 1988 from Ramakrishna Hegde, who had quit following a telephone-tapping scandal. The governor had sent a report to the President recommending he exercise power under Article 356(1) stating therein there were dissensions and defections in the ruling party. Then, seven out of the 19 legislators who had rebelled, sent letters to the governor complaining their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the ministry.

The CM had met the governor the same day and informed him about the decision to summon the assembly to prove the confidence of assembly in his government. But the governor did not heed his appeal and sent another report to the President to dismiss the government. President issued the proclamation, which was approved by the Parliament as required by Article 356(3).

The aggrieved minister Bommai moved the Supreme Court challenging his dismissal.

The Judgments of the Court were delivered by S. Ratnavel Pandian.

This trend-setting judgment by the Supreme Court stipulating a floor test, is the sole yardstick for testing a majority in case of a doubt.

The judgment stated that the proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it's found to be mala fide or based on wholly irrelevant or extraneous grounds. If the court strikes down the proclamation, it has the power to restore the dismissed government.

The governor is like a person wearing two hats. With one, he is the head of the state government and with the other, he is a representative of the President. He is not a mere agent of the President.

President's proclamation should be placed in Parliament within two months and approved.

"In all cases where the support of the Ministry is claimed to have been withdrawn by some legislators," Justices Sawant and Kuldip Singh held, "the proper course for testing the strength of the Ministry is holding the test on the floor of the House." "The assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the Governor or the President" (emphasis added).

Justices Jeevan Reddy and Agarwal underlined the floor test procedure:

"Whenever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House" (emphasis as in the original). The sole exception to this will be a situation of "all-pervasive violence where the Governor comes to the conclusion - and records the same in his report - that for the reasons mentioned by him, a free vote is not possible."

These simple legal mandates were before President Narayanan when he had first ordered a brief on Bommai as BJP-BSP relations deteriorated in the State. Prime Minister I.K. Gujral was receptive to the need for a floor test, but Defence Minister Mulayam Singh Yadav, backed by the Congress (I), insisted that the BJP Government be dismissed. Although legally in the wrong, Mulayam Singh was in a political sense entitled to suggest the course of action he did.

In June 1995, his Ministry in Uttar Pradesh, deserted by the slippery BSP, became the first to be dismissed after Bommai was delivered. The Chief Minister was summoned to the Raj Bhavan at 4 p.m. on June 3 and told to resign. Despite his explicit protest against the unconstitutionality of the action since Bommai made a floor test his right, Governor Motilal Vora asserted that legal opinion stressed his discretionary powers in such situations. (Frontline, June 30, 1995).

With one eye on coming Assam and other State elections, the precipitated actions, the dramatic gestures and rhetorical flourishes of RSS Brigade are becoming shriller day by day. PM Modi seeks to carve his place in history. Hope and pray, it were not for all wrong reasons.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of merinews.com. In case you have a opposing view, please click here to share the same in the comments section.
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