There is certainly a case for imposition of the President's rule in Bihar. The case was indisputably strong before the detention of Laloo Prasad Yadav, when the former Chief Minister refused to step down in order to facilitate investigations into the fodder scam and the pursuit of the course of law to its logical conclusion. The demand may have lost some of its urgency, but it has not become entirely outdated. More than merely doubtful is the dependability of the Rabri Devi Government's assistance to the due process of investigations and justice in strict accordance with the letter and spirit of law. That it is a continuation of the Laloo regime by other means is not a minority view; and only the naive, who rule out the State bureaucracy's active involvement in the Rs 950-crore scam, will expect a brave new role from it now. The demand cannot be dismissed and the political Opposition can press it. But, the Patna High Court must not. Nothing, in fact, can weaken the case as seriously as such straying by the court into the domain of party politics, a safe distance from which is synonymous with its dignity. The court has only compounded the folly of its call for Central intervention of the ultimate kind in Bihar with its observation that it has the right to recommend such a measure. This is a doctrine fraught with dangers -- for the judiciary more than anybody else.

The dangers arise from two widely debated issues. Immediately involved in the court's demand is Article 356 with its well-demonstrated capacity to damage the image of a constitutional office. The controversy might continue on the amendments and additions it calls for, but there is across-the-board agreement that the provision has been politically misused again and again. This, in political and public perception, has been made possible by the gross abuse of the office of the Governor reduced to the role of an agent and instrument of the Centre against politically incompatible state governments. If the example sought to be set by the Patna High Court finds acceptance by the apex court, admirers of the judiciary and upholders of its august status can only shudder at the prospect. Governorisation of the courts' image can only serve to grievously impair the effectiveness of yet another constitutional institution. There is no doubt that the court has powers to review decisions taken under Article 356. This itself is an assertion of the nation's faith in the judiciary and its ability to rise above all political feuds.

Another danger is related to the debate over judicial activism. If, despite the evident pitfalls, enlightened opinion still welcomes the social role sought to be played by the courts, it is because of the lack of public trust in politicians and the executive in their hands. The judiciary will only be compromising this authority, and paving the way for its further corrosion, by appearing to be politicised. And, no demand for the dismissal of an elected state government and its replacement by the President's rule can appear unambiguously unpolitical. Laloo Yadav and his likes can surely be fought without paying so forbidding a price.

Copyright © 1997 Indian Express Newspapers (Bombay) Ltd.