When our Constitution describes India i.e. Bharat, it was not a mere phraseology but highlighted the reality of two, India (i.e. privileged few) and Bharat (the deprived many).
To that end, apart from right of equality (Article 14) enshrined in fundamental rights Chapter, Article 39(b) provided that the State shall direct its policy towards securing that the ownership and control of material resources of the community are so distributed as best to subserve the common good. This necessarily postulates that the equality of sacrifice must be the same for all, including legislators.
The Ordinance issued by the Central Government allowing pay and allowances to the newly elected members of the Bihar Assembly, even when the Governor has not summoned the Assembly under Article 174 of the Constitution nor have the members yet taken the oath as provided by Article 188 of the Constitution, is so patently unconstitutional that we can only attribute this unconcern by the Executive to the compulsion of petty group politics and the coalitional survival politics.
Evidently, the Governor possibly under party pressure has refused to summon the Assembly because the State Government, convenient to the central inclination cannot be formed – this action is a dereliction of duty by the Governor and is contrary to the mandate of the Constitution.
In the absence of Assembly sittings, the members cannot be paid any salary and allowances. Thus an unelected Governor runs the State as a medieval sovereign. This is against the scheme of our Constitution because as the Supreme Court says, “our Constitution establishes a democratic republic as is indicated in the Preamble to the Constitution itself, and the Cabinet system of government is generally known as responsible government.” A responsible Government provides for a healthy functioning. The democracy has to be contrasted with a caretaker Government which is ad hoc in all its context and which is not required to take any policy decision.
Much more appropriately this caveat by the Supreme Court applies to Bihar where though elections have been held, Assembly is not being summoned for extraneous reasons.
In such a situation, the only morally and legally correct course is to dissolve the Assembly. The Governor should give last warning to the parties that unless they are able to come forward to form the Government within a month, he will recommend dissolution of the Assembly. There is nothing extraordinary in the suggestion because in the ultimate analysis, the sovereignty rests not with the legislators but with the people at large.
The voters themselves will make an assessment and punish the parties or individuals who have been responsible for denying them a representative Government. India’s freedom struggle was for a representative Government and Governor’s rule is an anathema.
But, what the Central Government is doing is so horrendous that it boggles once imagination. The Central Government is issuing an Ordinance to provide that the salaries and allowances be paid to the MLAs notwithstanding that the Assembly is not being summoned and consequently legislators will get these perks while sitting idle. This attitude runs counter to the Central Government rightly objecting to the boycott by the NDA in the just concluded session of the Parliament. I am of the view that boycott of a Parliament or Assembly proceedings by members is impermissible, whatsoever the complaint of the opposition.
Legislative proceedings are sacrosanct and there can be no justification to abstain from it because members are elected to voice the grievances of the people.
The legislatures is not a privileged freemasonry lunch groups where legislators can choose to abstain as per their liking and still be paid by the State. Public has gone even to the length of suggesting, and I agree with it that even when the House is adjourned for whosoever fault, none of the members be paid any allowance or salary for that day and there should be a cut in their salaries. This, notwithstanding that the adjournment may be caused by a minority of unruly members. Though it may apparently look harsh on those members who are dutifully wanting to sit in the House, but I see no such unfairness. The reason is that the Parliament and State Assemblies have passed laws that if any serious disorder takes place in any part of the State, a collective fine can be imposed on the inhabitants of a particular area even though the majority of those inhabitants may be totally innocent and the rowdy may be a few. Why should not the same yardstick apply to the venerable members of the State Assemblies unless of course the legislators claim to be in the George Orwellian phrase “of being more equal than the others”.
The Supreme Court has also ordered that if the workers do not work on a particular day they will not be paid their salaries. That being the law, it is beyond doubt that this Ordinance which allows a bounty to the Bihar legislators who have not even sat for one day in the Assembly, is totally unjustified.
So, insensitive are the legislators that some of them have complained as to why even the legislators constituency fund is not being provided to them. Amazing is the brazenness of those who want constituency fund (the legality of which is already under judicial scrutiny) but without no corresponding duty to represent the grievances of the public in the Assembly. This approach seems to suggest as if the Central Government is like the feudal Lords of middle ages which can dish out benefits to its coteries. More painful is this decision to pay the legislators when the Central Government at the same time is refusing to carry out its manifesto obligation of employment guarantee for 100 days for all the villages in the country because of a lack of resources. But such is the amorality of present politics that where Bihar legislators of various parties are not even willing to talk to each other, they are unsurprisingly unanimous and in agreement for receipt of salaries and other monetary benefits. It is this sad state of affairs of morality in public life which demand that electorate must be given a fresh chance to punish the guilty and choose their representatives.
Though I personally feel that Article 356 should not be a part of the Constitution, it can only be resorted to meet a real emergent situation. The use of Article 356 in the context of Bihar parties’ horse trading is a misuse of the provision.
The country looks to a sensitive and morally conscious Prime Minister to lead it out of this political morass.