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STATES: TAMIL NADU
CHENNAI LESSON
Without constitutional powers, the Centre's bark might
just turn into a whimper
You can't call Jayalalitha
the other "guy", though it was she who blinked! She was the
challenger, yet it was she who held out the white flag under Central pressure.
She alone scripted the horrendous plan of dragging former chief minister
M. Karunanidhi out of bed at midnight, on the basis of a fir lodged by
a tainted municipal commissioner, and putting two Central ministers of
the DMK behind bars. But, five days later, she caved in as she released
them all, with the face-saving caveat that Karunanidhi had been freed
"on humanitarian grounds". In the consequent blood-letting,
she suffered more as the Centre invoked its special powers to bulldoze
her friendly Governor, Fathima Beevi, into resigning. "We barked,"
says Union Law Minister Arun Jaitley, "and it worked."
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DOWN TO EARTH: Karunanidhi, who "cannot
stand for more than a couple of minutes", sits on a dharna at
the Central Prison premises in Chennai soon after his arrest
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Surely it has worked to an extent-within two
months of Jayalalitha's re-entering Fort St George in Tamil Nadu's typical
politics of crowning the latest underdog, the tables have now turned on
her. But her vengeful strike has exposed some gaping holes in the constitutional
separation of powers between the Union and the states. First, what constitutional
authority does the Centre really hold to tame a Governor who had rubber-stamped
the chief minister's version of the critical events that decide if the
constitutional machinery is in order? None, it seems. The power to recall
a governor is inherent in Article 156, defining his/her term of office,
which says that "the Governor shall hold office during the pleasure
of the President". The executive, however, cannot cause the presidential
"pleasure" to be withdrawn selectively and too often. In 1990,
when the V.P. Singh government sought the removal of a few governors,
the then President R. Venkataraman sent packing all state governors lest
it gave an impression that "some will go and some will stay".
But then how does the Centre handle a situation
like the one in Chennai last week, in which the governor accepts the state
Government's word to a T on the issue of the summary arrest of opposition
leaders and thousands of their supporters? In managing the present crisis,
the Centre swore by the 1988 report of the Sarkaria Commission. But the
report is full of admonitions to show old-world courtesies to the erring
governor, like giving him a hearing before cutting short his full term
of five years.
The other grey spot in Centre-state relations
laid bare by Jayalalitha's offensive concerns the arrests by her police
(and obviously under her orders) of the former chief minister and two
Central ministers. Before Karunanidhi, no serving or former chief minister
had been put behind bars without judicial sanction. Jayalalitha herself
was arrested after the special court had declined her bail, as was Laloo
Prasad Yadav. The arrest of Union ministers Murasoli Maran and T.R. Baalu-allegedly
for obstructing the law-is also unprecedented but, equally, it is legal
for a state's police to detain a person, regardless of his rank, under
any ground included in the Criminal Procedure Code (CRPC). The arrests
showed that politicians enjoyed little immunity from harassment by the
police of a hostile state government. The anomaly was brought into focus
by a telling Laloo-speak: "Nitish Kumar (Laloo's arch rival and Union
agriculture and railway minister) can be arrested by the Bihar police."
Even Jaitley acknowledges the necessity of a
law, in the interest of federal governance, that prevents the arrest of
Union ministers by a state police without "prior permission"
of the prime minister. The irony is that such a provision militates against
the Seventh Schedule of the Constitution, which puts the police on top
of the state list of subjects. Such a law will, therefore, not stand constitutional
scrutiny.
The Centre may have "barked" Jayalalitha
into submission but her onslaught shows that its flanks are not guarded
with constitutional power. And its only defensive weapon, Article 356-for
promulgating President's rule-is without ammunition because the ruling
party is in a minority in the Rajya Sabha.
—Sumit Mitra and Lakshmi Iyer
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