Conspicuous weaknesses of the Liberhan report : business of state inaction

Deccan Chronicle, December 2nd, 2009

Liberhan’s weak spot

by P.C. Alexander

It will be highly hazardous to attempt a review of Justice M.S. Liberhan’s report on the demolition of the Babri Masjid (hereafter referred to as the disputed structure) on December 6, 1992, without having had the opportunity of reading it.

I have some experience in assisting political bosses and the best that a former civil servant like me can do is concentrate on what strikes me as the most conspicuous weaknesses of the report.

The picture that emerges from the accounts in the media about the Central government at that time is that it knew what was to be done, namely, the introduction of President’s Rule, but it was helpless and hesitant in taking the decision.
Let us examine how far Justice Liberhan had done justice to the evidence he had before him on this issue. Why was Justice Liberhan inclined to come to the conclusion that the Central government had no option but to continue to press the state government to make full use of the Central forces placed at its disposal, instead of assuming that power for itself and dealing with the situation in Ayodhya? Why was the Central government so reluctant to use the power it had to deal with the emergencies of the type which developed in Uttar Pradesh in 1992?

Let us briefly examine the legal and constitutional position regarding the introduction of President’s Rule in a state. Though maintenance of public order is included in the state list of the Constitution, the framers of the Constitution were well aware of the fact that situations might arise when a state government might be unable to carry on its functions according to the provisions of the Constitution. That is why adequate provisions have been made in the Constitution for the Central government to intervene in situations of emergency so that it never finds itself helpless in such situations.

The Constitution mentions three types of emergencies:

* when the security of the country is threatened by war or external aggression or armed rebellion (Article 352);
* when the financial stability of the country is threatened (Article 360); and
* when there is a failure of the constitutional machinery in a state (Article 356).

There is no ambiguity whatsoever about the fact that the duty to protect states from external aggression and internal disturbance is squarely on the Central government.
Article 356 empowers the President (which means the Central government) to intervene when satisfied that the government of a state is unable to function in conformity with the provisions of the Constitution. In such circumstances, the President can assume all or any of the provisions exercised by the governor of the state. Though the framers of the Constitution thought that this provision would be used sparingly, the Centre has resorted to action under this on more than 100 occasions.

The issue which the Central government had to decide, as 1992 drew to a close, was whether the situation in Ayodhya required invocation of the powers under Article 356. Unfortunately, there had been considerable hesitation on the part of the decision-makers within the Central government itself of taking on direct rule of Uttar Pradesh. It is a well-known fact that the Cabinet was sharply divided on this issue.

Some of the administrative steps taken by the Uttar Pradesh government in defiance of the advice given by the Centre in the weeks preceding the demolition of the disputed structure at Ayodhya should have convinced the Centre that without the powers conferred on it under Article 356 it would continue to play an advisory role about preserving public order in the state.

Even without waiting for requests for additional forces, the Central government had been deploying large number of paramilitary forces in the hope that they would be posted at the Ayodhya complex. However, the Central government found itself helpless when the state used such forces in places other than Ayodhya and sent its own state police forces to be on duty in Ayodhya. The state government had also been posting to Ayodhya and its neighbourhood its “trusted officers” in various offices who had the responsibility for maintaining law and order.

The Union home ministry at that time had as its secretary a very competent Indian Administrative Services officer, Mr Madhav Godbole, who had prepared contingency plans of action which could come into force within minutes of approval by the Cabinet for placing the state under President’s Rule. He had been regularly meeting the Prime Minister and a few senior members of the Cabinet to warn them about the grave risks involved in postponing the decision about introduction of President’s Rule. However, the Centre chose to take no action as advised by its own home secretary and waited till the last minute of the proverbial 11th hour to do what it did.

Let me now deal with the state governor’s letters advising against imposition of President’s Rule. Introducing President’s Rule in a state is a matter on which the Constitution has given full powers to the President, i.e. the government in Delhi. The governor’s recommendation is nowhere mentioned as an indispensable condition for such action. Article 356 clearly states that a decision on introduction of President’s Rule can be taken even without a report from the governor. In any case, it is too much to say that the governor of Uttar Pradesh would have been better informed about the developments in the state than the Prime Minister and his colleagues in the Cabinet. There was very little new that the governor could convey to the Centre on this matter. However, this letter became an excuse for postponing the decision and the Liberhan Commission appears to have justified this policy of “no action under Article 356”. The Centre appeared to have been confident that it could have the cake and eat it and continued the “No action under Article 356” policy till Mr Kalyan Singh himself submitted his resignation.

The so-called helplessness of the Central government was because of its own decision not to assume the powers provided for in the Constitution to deal with such situations. The Liberhan Commission chose to endorse this stand of the Central government in December 1992 and that is why this has to be described as the weakest part of the commission’s report.

* P.C. Alexander is a former governor of Tamil Nadu and Maharashtra