Such is the monumental ineptitude and tactlessness that the United Progressive Alliance demonstrated in Jharkhand that one is tempted to say it lost in 10 days a good deal of the goodwill it had earned in the preceding 10 months after humbling the National Democratic Alliance in the national election.
The Congress almost decided to snatch defeat from the jaws of victory by refusing to negotiate an alliance with the Rashtriya Janata Dal and the Left -- despite the handsome victory in 13 out of Jharkhand's 14 Parliamentary constituencies this had delivered.
Then, the UPA made its second blunder: of pushing its claim to power despite having only 33 seats (as against the NDA's 36) in the 81-member assembly. It was widely seen as having abused the governor's office. It failed to hold a vote of confidence and emerged badly mauled from the fiasco. It enabled the NDA to regain not just power, but a measure of democratic credibility.
Actually, neither alliance won the election. In fact, the NDA's vote declined from 36.8 percent last year to just 27.4 percent. This was fully 10 percentage points lower than the Congress-Jharkhand Mukti Morcha-RJDS-Left's total of 37.6 percent. Despite this, and a marginal lead in seats, the NDA staked its claim to power -- because it was confident of inducing defections, allegedly buying up MLAs and spiriting them away.
Such tactics -- and Chief Minister Arjun Munda'S strong-arm methods -- hardly speak of democratic credentials. But rather than let the NDA discredit itself, the UPA began competing with it. In the process, it allowed the NDA to emerge as a defender of democracy, one endorsed by the President of India and the Supreme Court. Large sections of the media, sympathetic to the BJP or manipulated by it, added greatly to the effect.In reality, there were no heroes in Jharkhand. Every major actor played a questionable role, showing democracy in poor light and exposing weaknesses in institutional arrangements. One of the first villains was Governor Syed Sibtey Razi. For mysterious reasons, he decided that Shibu Soren would be better able to provide a viable government than Munda and swore him in. He could have credibly argued that such discretionary power is indeed available to him under the Constitution and backed his judgement with evidence, such as letters of support to Soren from non-UPA MLAs, etc.
He failed here and granted an unreasonably long interval to Soren to prove his majority. Meanwhile, Caretaker Chief Minister Munda rounded up MLAs such as Enos Ekka, Harinarayan Rai and Madhu Kora. Soon, the BJP despatched senior leader Ravishankar Prasad to help Rajnath Singh 'manage' the situation. Thus began the 41 MLAs' odyssey-under-duress from Ranchi, to West Bengal to Orissa to Delhi to Jaipur. No MLA was allowed to use the telephone or even to go to the toilet on his own. It stretches credulity to argue that these MLAs exercised 'free choice.'
Clearly, the NDA, unlike the UPA, proved highly effective in conducting a well-planned, elaborate, multi-state operation involving inducement, abduction and force. To argue that this established its democratic claim to power is to accept a grotesque parody of democracy.
Democracy is not just about winning elections or mustering majorities. It's also about an accountable system of political parties, which respect their members' choices of candidates or leaders, act in consonance with the popular mandate, and follow norms and conventions of political decency -- for example, of not conjuring up artificial majorities through bribery or coercion.
By these criteria, what happened in Jharkhand was not democratic. Going by the Westminster convention -- namely, that a ruling party which loses an election should not be the first to be invited to form the government even in a hung Parliament -- Munda should not have staked his claim. But crude forms of horse-trading were allowed to catapult him into power.
If Munda is no hero nor was Pro-tem Speaker Pradeep Balmuchu, who did little to implement the Supreme Court's directive to hold a vote of confidence on March 14, using the disruption caused by UPA MLAs as an excuse to adjourn the assembly. This rewarded mayhem.
Mercifully, the Centre at last asked Soren to resign. But it must take some responsibility for going along with the governor's decision to swear in Soren without constructing a credible case. In general, the Congress leadership proved unconcerned about upholding democratic norms. No less unheroic was the BJP's brass which mounted a loud campaign against the UPA, fancifully evoked the Emergency, and yet indulged in coarse horse-trading and coercion while claiming democratic virtue. At the end, after Munda won the confidence vote, there still remains some ambiguity about the status of three MLAs!
Neither the BJP-Jana Sangh nor NDA has been better than the Congress as regards abusing the governor's office -- to install interlopers or scuttle elected governments. Sunder Singh Bhandari wanted Rabri Devi dismissed in Bihar in 1999 on bogus law-and-order grounds. He was overruled by President K R Narayanan. In 2000, Governor Vinod Pande swore in Nitish Kumar who patently lacked majority support and quit without a confidence vote. The Jana Sangh led the campaign in 1977 to dismiss all Congress-ruled state governments after the party lost the Lok Sabha election.
For the BJP, democracy and the Constitution are largely instruments. It bears recalling that it wanted to alter the core of the Constitution by ushering in a highly centralised, unitarian, Presidential system through a commission appointed in 1998.
Perhaps the most disturbing aspect of the Jharkhand story is the role of the President and the Supreme Court. Under the Constitution, the President has no function in appointing a chief minister. This is exclusively reserved for the governor. Nor is the President the court of last resort in matters of justice.
Yet, President Kalam repeatedly, demonstratively received BJP delegations. He asked Razi to advance the floor test. This was beyond the remit of his authority. His office didn't once counter the false report that he received the NDA's 41 MLAs. President Kalam didn't behave in an exemplary, nonpartisan way.
No less unfortunate were the Supreme Court's pronouncements while hearing a petition moved by Munda. It said: 'If the averments of the petitioner are correct, then the action of the governor is a fraud on the Constitution.' The 'if' is all-important. The court shouldn't have made a harsh indictment without determining that Munda's allegations were true. This would entail scrutinising Razi's rationale in appointing Soren and going into merits, including likely support for the two alliances. This didn't happen.
The court also ordered that the assembly session must hold a confidence vote on March 11; the agenda would be limited to the trust vote; the proceedings must be conducted peacefully and without 'any disturbance' and the results must be 'announced by the Pro- tem Speaker faithfully and truthfully.'
There are several problems with this. First, it seriously interferes with the autonomy of legislatures and their presiding officers. Part VI of the Constitution mandates a quasi-federal structure and grants substantive executive power to the governor. Articles 122 and 212 are explicit that the courts have no jurisdiction to inquire into the proceedings of legislatures. Article 212 reads: '(1) The validity of any proceedings in the legislature of a state shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member or the Legislature [empowered to regulate procedure]... shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers...'
Second, the court prejudges the governor's and the Pro-tem Speaker's guilt. And third, it confounds the latter's role with the Speaker's. The Pro-tem Speaker, by convention, has just one task: electing the Speaker, who alone can conduct the legislature's proceedings.
All this amounts to blurring vital demarcations between the executive, the judiciary and the legislature. Such separation of powers is a pillar of India's democracy. Just as the courts have no jurisdiction over legislatures, lawmakers are barring from discussing 'the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties' (Articles 121 and 211). Absent these barriers, chaos will prevail.
At stake is India's success as a Constitutional democracy, where each organ of power knows its authority and its limitations. We must have a clear, unambiguous resolution of the issues raised by the court's Jharkhand intervention. It won't do to shirk this on the ground that it will precipitate a 'confrontation' with the judiciary. On the contrary, a Presidential reference to the court will clarify matters and help ensure that the BJP-NDA cannot exploit the court's unfortunate pronouncements as licence for irresponsible politics.