How CBI’s Plea in SC Lays Ground for President’s Rule in Bengal

CBI claim that there has been a “breakdown of constitutional machinery” is not just rhetoric, but basis for Art 356.

Is PM Narendra Modi planning to impose President’s Rule in West Bengal?

(Photo: Kamran Akhter/The Quint)

West Bengal Chief Minister Mamata Banerjee is taking her fight against the Modi government to Delhi next week, where she will be joined by several Opposition leaders who claim they are standing up for the Constitution, human rights and the rule of law.

But even as she prepares to lead the charge to dethrone Prime Minister Narendra Modi at the next general election, the Bharatiya Janata Party appears to have plans of its own to wrest power from Didi and her Trinamool Congress in West Bengal. To do this, they’re not going to rely on their oft-used modus operandi – no Operation Kamals, no rath yatras, no polarisation campaigns.

Instead, it looks like they’re going to do this one by the book, and try to impose President’s Rule in the state. Moreover, this isn’t going to be like the Uttarakhand fiasco, where they shot from the hip and had their decision overturned by the high court. No, this time they’re looking to get judicial approval or at least acquiescence for their reasoning before they pull the trigger.

Why should we believe this to be the case? After all, messages are being sent to the media (see for example this piece in The Hindu) saying that President’s Rule is not on the cards, despite calls for it by BJP leaders like Rakesh Sinha and Babul Supriyo.

The devil is in the details, though, and the details of the CBI affidavit filed in the Supreme Court earlier this week appear to be the first tentative step towards President’s Rule in West Bengal.

What the CBI Affidavit Says

The Central Bureau of Investigation has filed two pleas in the Supreme Court. The first is an application for a direction by the court to the West Bengal authorities (including the Kolkata Police and Commissioner Rajeev Kumar) to cooperate with the CBI and not impede their investigation of the chit fund scams. The second is a contempt petition which alleges that the West Bengal authorities have failed to comply with the Supreme Court’s judgment dated 9 May 2014, which ordered them to cooperate with the CBI, to whom the judges had transferred these investigations.

When they mentioned these pleas before the court on Monday, Chief Justice of India Ranjan Gogoi took exception to how the CBI was claiming they were afraid Kumar was planning to destroy electronic evidence, without any proof or evidence to back up this claim. The bench instructed the CBI to submit proof of Kumar’s intent to destroy evidence before the hearing on Tuesday.

Enter the CBI affidavit.

In this, not only did they claim that Kumar was intending to destroy evidence, they also alleged that he had already tampered with electronic evidence like call logs, withheld some evidence, and coordinated with the accused persons in the case. True to form, they failed to provide any evidence in the affidavit to back up these claims, but assured the judges they would provide them with relevant proof in a “sealed cover” (of course).

After 20 poorly-worded and repetitive paragraphs which at least relate specifically to the application and petition, the affidavit then takes a detour in para 21 to decry the detention of the CBI officers who tried to enter Rajeev Kumar’s house on Sunday, and the alleged holding of the CBI Joint Director and his family hostage by the Kolkata Police on the same day.

It is understandable that the CBI would want to draw attention to the way in which they were thwarted by the West Bengal authorities, since they want such obstruction to stop. However, the affidavit goes far beyond pointing out these concerns, and instead offers an interpretation of the events that raises the stakes. It begins with these lines:

“All these draconian and undemocratic acts were being conducted in full view of media coverage clearly reflecting that neither the mandate of this Honble Court nor the constitution of India applies to one State (sic).”

This isn’t just empty rhetoric, this is a detailed set-up to make a very specific argument:

“The action of Kolkata Police, obviously under orders from their superiors, in attacking and manhandling the CBI officers and forcefully and illegally detaining them leads to only one inevitable conclusion that <b>there is complete breakdown of the constitutional machinery in the State</b>.”

(emphasis added)

Breakdown of ‘Constitutional Machinery’ = President’s Rule Alert

It’s the specific usage of the wording “breakdown of the constitutional machinery” that makes the intentions of the CBI (read: the central government) clear.

Article 356 of the Constitution of India describes what happens “in case of failure of constitutional machinery” in a state. According to this provision, if the President of India (read: the central government) is satisfied that “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution”, President’s Rule can be imposed in that State.

The CBI affidavit makes no secret of the fact that they think such a situation has arisen. So what is needed to prove this?

After years of misuse of this provision by previous governments at the Centre (including Indira Gandhi’s and the Janata Party’s), the Supreme Court set out the ground rules for imposing President’s Rule in the SR Bommai judgment in 1994, drawing heavily on the report of the Sarkaria Commission.

Apart from the obvious situation where a state government loses its majority, a failure of constitutional machinery can take the form of:

1. Large-scale breakdown of the law and order or public order situation
2. Gross mismanagement of affairs by a state government
3. Corruption or abuse of its power
4. Danger to national integration or security of the state or aiding or abetting national disintegration or a claim for independent sovereign status and
5. Subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabric.

The CBI appear to have gone for broke and essentially alleged that what happened in West Bengal on Sunday demonstrates all these things have happened. After saying that these events stand testimony to the lawlessness in the state, the affidavit goes on to say:

“If the Central Investigating Agency discharging its duty under the mandate of this Honble Court is not safe, it can safely be presumed that <b>the Government of the State is not being carried out in accordance with the Constitution of India</b>. Such actions which were on a public display throughout the country tantamount to <b>nothing less than an armed rebellion</b> against the Central Government and the Central agencies.”

(emphasis added)

After a brief tirade about police officers attending dharnas, para 21 finally ends, and para 22 carries on where para 20 left off. None of the prayers in the application or contempt petition have anything to do with a claim of breakdown of constitutional machinery, so the whole thing stands out like a sore thumb.

What Happens Next?

Positioning this argument as just one part of the CBI’s submissions to the Supreme Court is a clever move. The Centre doesn’t risk the court rejecting the idea, but they will nevertheless get some indication of how seriously the Supreme Court views the events in Kolkata on Sunday.

If the judges don’t reject this argument outright, the Modi government will have the option of presenting any decision of the court in this case as a tacit acceptance of the CBI view that there has been a breakdown of constitutional machinery in the state. Since the court has also issued notice on the contempt petition and asked West Bengal officials to respond to the allegations before the next hearing on 20 February, their eventual judgment cannot entirely ignore these claims.

This would no doubt help when defending a decision to impose President’s Rule in the state, which would inevitably be challenged in the Calcutta High Court or the Supreme Court.

By going through this process, the Centre also gets to gauge the mood in West Bengal and other parts of the country before taking what would be a very drastic step – the success of Mamata’s agitations in Delhi next week could be key to that. The BJP have often called for President’s Rule in West Bengal, whether during the Gorkhaland agitations or the panchayat elections. They know that their chances of winning seats in West Bengal are slim with the TMC in power, but they knew the move would backfire on them if they tried to do so.

In the meantime, they have already taken other necessary steps, having asked Governor Keshari Nath Tripathi for a report on the matter, while Home Minister Rajnath Singh has already told the Lok Sabha on 4 February that the situation “bordered on the failure of constitutional machinery.”

If a court decision comes in sometime towards the end of February or the beginning of March, they could then impose President’s Rule in the state just before the general election, which would give it little time to be exploited by Mamata and other parties, and allows them to claim legitimacy by waiting and not acting precipitously.

If none of this was intended, it would make little sense for the CBI to include the argument in their affidavit. Nevertheless, it will be some time before the BJP decide to roll the dice, and only the Supreme Court can really stop them.

(This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)