US embassy cable - 05NEWDELHI8856

C O N F I D E N T I A L SECTION 01 OF 04 NEW DELHI 008856 
 
SIPDIS 
 
E.O. 12958: DECL: 11/23/2015 
TAGS: KJUS, KDEM, PGOV, PINR, IN, Indian Domestic Politics 
SUBJECT: CONGRESS DREADS IMPENDING SUPREME COURT JUDGMENT, 
SENIOR RESIGNATIONS POSSIBLE 
 
REF: A. NEW DELHI 8844 
     B. CALCUTTA 420 
 
Classified By: Political Counselor Geoff Pyatt, for Reasons 1.4 (B, D) 
 
1.  (C) Summary: Congress is facing a major political mess of 
its own making as it waits for a Supreme Court judgment that 
may rule its actions in Bihar to have been unconstitutional, 
with potentially dire consequences.  When Congress moved 
precipitously to head off the formation of BJP/NDA 
governments in Jharkhand and Bihar in February 2005, using 
the governors to dissolve both governments and prevent the 
opposition from staking their claims, the UPA in Bihar 
allegedly ignored a key provision of the Indian Constitution 
and failed to constitute the state assembly before dissolving 
the government.  The Supreme Court could issue a final 
judgment in the case as early as November 25, accusing 
President Kalam, Prime Minister Singh, and the Union Cabinet 
of acting unconstitutionally in Bihar.  Such a judgment would 
add to growing Congress Party woes (Reftel A).  The BJP/NDA 
would almost certainly call for PM Singh's resignation. 
Congress has been reluctant to comment publicly, but party 
contacts say privately that they are taking the issue 
seriously, and will sack Bihar Governor Buta Singh, but will 
fight to retain PM Singh.  The Left Front(LF) is prepared to 
join with Congress to defend against an anticipated 
opposition onslaught, but could demand that the UPA slow the 
pace of economic liberalization and its pro-American foreign 
policy as the price for its support.  Either way, this mess 
is an "own goal" of the worst sort, just as Parliament 
reconvenes and just after a colossal election defeat in, 
ironically, Bihar.  End Summary 
 
A Big Screw Up 
-------------- 
 
2.  (SBU) Bihar continues to prove troublesome for the UPA, 
which has taken some serious missteps there (Ref B).  In the 
February 2005 election, the then-ruling Rashtriya Janata 
Party (RJD) of Railway Minister Lalu Prasad Yadav won the 
largest vote share and largest number of seats, but could not 
form the government.  The UPA Cabinet made a midnight 
decision and on May 23, President Kalam issued a proclamation 
dissolving the Bihar Assembly.  In what could charitably be 
called a grievous oversight, no one in the UPA government 
appeared to realize that under the Indian Constitution, the 
sitting Assembly's term had officially ended, and Article 174 
requires the GOI to convene the newly-elected assembly before 
addressing the issue of whether any party or group of parties 
had sufficient strength to form the state government. 
 
Gotcha! 
------- 
 
3.  (U) Demonstrating the vibrancy of India's civil society 
groups, a group of NGO's and civil rights organizations then 
filed a legal case alleging that Bihar Governor Buta Singh 
acted unconstitutionally when he submitted the dissolution 
proposal to New Delhi, and that President Abdul Kalam, Prime 
Minister Manmohan Singh and the Union Cabinet 
unconstitutionally approved the measure.  Soli Sorabjee, a 
former Attorney General and lawyer for the plaintiffs, argued 
that Governor Singh "made no attempt to explore the 
possibility of forming a government before recommending the 
dissolution of the house," and that the "indecent haste" 
exhibited by the Governor demonstrated that "his only 
intention was to prevent Janata Dal(U) leader Nitish Kumar 
from staking his claim to form the government, as it did not 
suit the political ambitions of Lalu Prasad Yadav."  Sorabjee 
maintained that the UPA government never provided an 
explanation "for the hurry shown in getting the Proclamation 
signed by the President (who was then in Moscow) at 
midnight." 
 
"You Screwed UP" 
---------------- 
 
4.  (U) On October 7, the Supreme Court made an interim 
judgment that the UPA's actions appeared unconstitutional, 
but said it would not interfere with the Bihar elections then 
in progress.  The SC determined that to stay the election 
would question the legitimacy of the Election Commission, 
which had proceeded with polls in Bihar.  The SC promised to 
deliver a final verdict but noted that it would "take some 
time," as "we have to take into consideration every angle as 
it would have far-reaching consequences that would not just 
be confined to Bihar." 
 
Case Could Have Big Ramifications 
--------------------------------- 
 
5.  (C) On November 17, Poloff met with Ram Shastri, one of 
the plaintiffs in the case, who contended that their legal 
team has been told that the final Supreme Court judgment 
could be issued as soon as November 25.  Shastri could not 
confirm which UPA officials would be named in the SC 
judgment, but suggested that it would be some combination of 
Governor Singh, President Kalam, PM Manmohan Singh, and the 
entire Union Cabinet.  Pointing out that the Supreme Court 
does not have the legal authority to order the dismissal of 
public officials, but can only point out their failings and 
hope that they make the proper response, he predicted two 
possible scenarios, 1) the SC absolves the President and 
singles out for blame the PM and his Cabinet, 2) the SC also 
fingers the President. 
 
A Very Sticky Wicket 
-------------------- 
 
6.  (C) Shastri maintained that under Indian political 
precedent, PM Singh would be expected to resign and dissolve 
his Cabinet if they are named in the SC Judgment as approving 
an unconstitutional action.  He predicted that the BJP would 
immediately call for their resignations, and that Congress 
would face a serious internal revolt if it attempted to foist 
the blame on senior Cabinet Ministers such as Defense 
Minister Pranab Mukherjee or Home Minister Shivraj Patil. 
Shastri speculated that should the combination of opposition 
pressure and internal revolt prove irresistible, PM Singh 
would have no choice but to step down. 
 
Kalam Could Go 
-------------- 
 
7.  (C) Shastri claimed that President Kalam takes his 
personal reputation very seriously and has already told the 
Congress leadership that he will resign if named.  Shastri 
predicted that the Left Front (LF) and Congress would bury 
their differences and pull together to get through the crisis 
and ward off a determined BJP assault, but that the LF would 
urge the UPA to get rid of liberal economist and 
America-lover PM Singh, who they see as their principal 
enemy, and replace Kalam and Vice President Shekawat with a 
new President sympathetic to their views as quickly as 
possible. 
 
Congress Counter Attack Strategy 
-------------------------------- 
8.  (C) In a November 17 Conversation with Poloff, Congress 
MP and Sonia Gandhi confidant Rashid Alvi hinted that his 
party was taking the issue seriously and preparing a 
counterattack strategy.  Congress is prepared to question the 
motives of the SC, he maintained, and ask why it delayed 
judgment until after the Bihar election was already underway 
and then refused to stop it and order the swearing in of the 
Assembly candidates elected in February, 2005.  He pointed 
out that 40 legislators in Uttar Pradesh mysteriously changed 
from the BSP to the Samajwadi Party and kept Mulayam Singh 
Yadav in power there, but the judiciary has yet to rule on 
the case, which has been in the courts for over six months. 
He questioned why the SC was so bent on pursuing the Bihar 
case, implying that Chief Justice YK Sabharwal has a personal 
onus against the UPA and Congress.  Alvi further hinted that 
Congress will also question the SC's right to dictate 
political matters when under India's political system, 
Parliament is responsible for determining the make-up of the 
government and the Supreme Court cannot make legislation or 
amend the Constitution. 
 
and Contingency Plans 
--------------------- 
 
9.  (C) Alvi asserted that Congress has no strong feelings 
for President Kalam and would not lament his departure, but 
is not prepared to sacrifice PM Manmohan Singh.  He suggested 
that the party would stage an elaborate "political drama," to 
keep Singh in office in which the PM would submit his 
resignation, there would be a "popular outcry" from all 
levels of Congress and Party President Sonia Gandhi would 
announce that because of the unprecedented popular pressure, 
she could not accept the resignation.  Alvi confirmed that 
both President Kalam and PM Singh have discussed the case 
with the Congress leadership and the possibility of 
resignation and expressed a willingness to do so to preserve 
their personal reputations.  Alvi denied that Congress had 
any list of successors to Manmohan Singh, and claimed that 
the party leadership has given no thought to replacing the 
PM. 
 
Comment - Damaging "Own Goal" 
----------------------------- 
 
10.  (C) Congress is doing poorly in the Hindi heartland, 
where its party organization remains moribund and ineffective 
despite heavy investments in rebuilding efforts.  This has 
led to growing fears that the BJP could use this important 
region to stage a comeback.  The Congress leadership acted 
rashly and in a manner reminiscent of its old thuggish 
tactics when it failed to win elections in Jharkhand and 
Bihar and tried to use the governors to come to power there 
through the back door and keep the BJP/NDA out of power. 
While Congress will almost certainly sack Governor Buta Singh 
at the earliest opportunity and try to make him the 
scapegoat, it is also prepared to part with President Kalam 
if the pressure does not subside.  Congress is likely to draw 
the line at PM Singh, however, and hold on to him at almost 
any cost.  The resulting infighting between Congress and an 
apparently resurgent NDA opposition could be too much for the 
UPA to handle.  With Congress under attack, the Left could 
demand that it step back from economic liberalization and 
pro-American foreign policies as the price for its support. 
The Prime Minister would surely oppose such a deal, just as 
he was rumored at the time to have opposed the Presidential 
intervention in Bihar on Lalu's behalf.  But these are trying 
times for the UPA, and in Indian politics anything is 
possible. 
BLAKE