Prof. Bhim Singh
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 Harish Rawat, a veteran and honest leader of the party. The BJP 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 Rawat government so that the Assembly election could be held under Modi rule for the reasons which need no explanation at this moment.
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 Pandavas ruled nearly 5000 years back. The first blunder which the Central BJP leadership 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, 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 nine 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, Harish Rawat needs 62/2 +1 = 32. The Governor had fixed floor test on March 28, to decide whether Harish Rawat enjoyed the majority. One MLA is nominated from the Anglo-Indian community namely Russel Valentine Gardener who has no voting right which is settled rule in the business of Parliament. That shows that Harish Rawat needed only 31 MLAs to prove his majority, in the Assembly. Rawat has 27 sitting MLAs and support of six other MLAs from small groups etc. Harish Rawat therefore has at present 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 K.Venugopal and Ram Jethmalani. The Congress legal advisors failed to comprehend the situation which was being directly monitored by Narendra Modi, the super man, in the Central government. This matter may come next week before the Supreme Court on a petition filed by 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 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?
(The writer is Chief Patron of National Panthers Party & Member of National Integration Council and a Senior Advocate, Supreme Court)