Delhi's warning

By Rajeev Dhavan

THE TAMIL Nadu crisis ended with a symbolic warning by Delhi asking the Jayalalithaa Government to behave itself and a short list of remedial directions. There is little doubt that the savagery with which Mr. Karunanidhi's post-midnight arrest and humiliation was planned and executed (including as it did, the arrest of Union Ministers on charges of obstruction) deserves the severest condemnation. June 30, 2001, will be remembered as the unprincipled nadir of Tamil Nadu's ``revenge regime'' politics which has reached impossible limits.

But, Delhi's warning to the Tamil Nadu merits rigorous scrutiny. For some time now, BJP-led coalitions have tried to re-write the script and scope of Indian federalism. This is in sharp contrast to its rhetoric on federalism. Out of power, the BJP remonstrated against the imposition of President's Rule on States ruled by it in the wake of the destruction of the Babri Masjid in 1992. Once in power, the BJP's stance on federalism changed. Partly due to the politics of appeasement towards its coalition allies, the BJP's own view of federalism is profoundly skewed - no less on Kashmir as any other State. We are not too far from the events of 1997-98 when the BJP tried to send an official team to West Bengal only to be strongly rebuffed by Mr. Jyoti Basu's left front regime. Mr. Karunanidhi can surely not have forgotten a similar initiative against his DMK Government.

In 1998-99, Kerala's Planning Commission was more than upset by the new ground rules sought to be created about Union grants to the State. Concern was expressed by activists in Madhya Pradesh about the manner in which employment schemes were rendered inavailable in the inter-crop season when they were needed most. If Ms. Mamata Banerjee needled the BJP- coalition to re-write federal arrangements in West Bengal, Mr. George Fernandes's Samata Party was equally subversive in its plans for Bihar. President's Rule was sought to be imposed on Mr. Laloo Yadav's Bihar. But, the political malafides were so glaring that the President, Mr. K. R. Narayan, exercised his refer-back veto to stop the imposition. Even this did not stop the BJP-led Government from having another shot at President's Rule in Bihar months later; but, it failed to pull it off against resistance from parliamentary parties at the Union.

Matters have got worse. In 2001, the BJP brought down its Samata ally's Government in Manipur to precipitate President's Rule. Unfortunately, because of the Nagaland ceasefire imbroglio, this was precisely the time when Manipur needed an elected Government. On June 30, 2001, the Tamil Nadu crisis began. The BJP-led Government flexed its muscles. It wanted to humiliate the humiliators and to be seen to be morally in charge. Floundering for style, it committed constitutional improprieties at every step. First, the Union Law Minister, Mr. Arun Jaitley, held up the confidential report of the then Governor, Ms. Fathima Beevi, for ridicule. This was uncalled for. Second, it carried the humiliation of the Governor further by engineering her dismissal. Governors have five-year terms. No doubt, they hold office at the pleasure of the President. But, the BJP's recall of Ms. Beevi was not a dismissal simplicitre, but because of her allegedly incompetent report. Years back, Mr. Barnala was the BJP's ideal Governor of Tamil Nadu because he stood up to Delhi. Now, a disagreeing Governor was disagreeably sacked.

But, the BJP-led Government's moral one-upmanship was not complete. It issued a `warning' to the Tamil Nadu Government. Both Mr. Jaitley and the Attorney-General, Mr. Soli Sorabji, justified `warning' on the basis of Paragraph 6.7.08 of the Sarkaria Commission Report. But, the Sarkaria Commission is neither gospel nor scripture. It is randomly invoked by politicians when it suits them. Many of its salutary provisions have never been implemented. In this case, the Sarkaria Commission's invocation is palpably misleading. We can never overlook the fact that President's Rule subverts both federalism and democracy. It does not exist in isolation. India's federalism prescribes `cooperation' not confrontation between States. The `warning' mechanism suggested by the Sarkaria Report is an extreme step, to be taken only if the Union Government is convinced that a case for President's Rule is made out. It is a part of the due process of federalism, not a unilateral political punishment. Unfortunately, after Kerala in 1959, breakdown of law and order has been regarded as legitimate ground for imposing President's Rule. But, even the Sarkaria report emphasises that the Union needs to evolve a way of resolving the problem through discussions and directives.

This gets us back to the core question on the constitutional status of Delhi's warning. The first principle is that the Union must refrain from exercising its muscle in areas within the exclusive competence of the State, which include the police and some aspects of law and order. The second principle is that the Union has no general power to issue warnings to the States; or, to recount the West Bengal example, send fact- finding missions to the States. Third, Indian federalism is cooperational not confrontational in nature. It follows that under the guise of governance, the Union cannot direct State governance. Fourth, a `Sarkaria' warning is to be given as part of a federal due process as a prelude to President's Rule after due discussions with the State. In other words, warnings exist only if a case is made out for President's Rule itself.

This takes us to the inner core of the controversy. If the `warning' was constitutionally proper, the Union must be deemed to have taken a view that a constitutionally transgressive arrest accompanied by large scale protests and arrests amount to a breakdown of the Constitution to justify President's Rule. Such a basis for President's Rule is simply not acceptable. It is Kerala (1959) and Bihar (1998-99) all over again - a horrible recipe which invites Oppositions in States to foment discontent to invite President's Rule. Impositions of President's Rule on grounds of corruption (Tamil Nadu, 1976, Manipur, 1979) or breakdown of law and order are inconsistent with federalism. The BJP-led Government has tried to have its cake and eat it too. Constitutional warnings are not political toys to gain moral advantages.

It is unfortunate that the BJP has never really understood Indian federalism except as a means to grab power and public attention for itself and its allies. The BJP's stance on abolishing Article 370 which confers a special status on Kashmir reveals its malunderstanding of India's federal structure. Again, the Nagaland ceasefire which has exercised Manipur, Arunachal Pradesh and Assam shows an inability to recognise the distinctness of each State. Indian federalism is quite unique - even more so than the Chinese's after Hong Kong and Macao joined their Union. What is at issue in the Indo-Pakistan talks is Indian federalism. India is as, if not more, varied as Europe. But, India has chosen federalism as its vehicle for pulling the subcontinent together. Pakistan and some of the Kashmiri groups are threatening the ``balkanisation'' of Kashmir. This is not an idle threat. We have witnessed a balkanisation process in the former Yugoslovia regions. A similar gameplan is being pushed for Kashmir by Pakistan and its contrived allies. If this is accepted for Kashmir, it will apply to other regions to put the very concept of India at risk. India's stance at these talks has to be founded on the twin principles of secularism and federalism. The BJP seems to understand both imperfectly. To each group and part of India, India offers autonomy, its sense of uniqueness, democracy, the rule of law and a sensitive and equitable federalism. The fundamental principle is Delhi does not rule India. India rules India. This is the key which unlocks the secret of Indian democracy and governance.

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