Karpoori Thakur’s Quest for Justice | Gopal Krishna

I am a casteless man. Those who oppose me are die-hard casteists.The Constitution provides for reservation for the educationally and socially backward. It has been implemented in several states. We have included the economically backward as well. This has not been done in other states. —Karpoori Thakur in an interview with Arul B. Louis, India Today, December 31, 1978

The real subaltern hero and one of the tallest legislators and the tallest chief minister of Bihar, Karpoori Thakur died an untimely and intriguing death on February 17, 1988. The cause of his death ought to have been probed. He was a freedom fighter who was involved in the Quit India Movement. He remained a socialist legislator till his death.

As Chief Minister Karpoori Thakur implemented the recommendations of Mungeri Lal Commission submitted to him in February 1977. It had recommended that backward classes be reclassified as extremely backward classes (including weaker sections of Muslims) and backward classes with a provision of 12 percent and 8 percent reservation in jobs for most backward and backward respectively. Besides this there was provision for 3 percent for women of any group and 3 percent for those who were ‘economically backward’ were reserved. Article His decision in favour of backward classes, whose representation in the state’s services was found insufficient was taken on the basis of 15(4) and Article 16(4) of the Constitution of India. Subsequent socio-political developments and the verdicts of the Supreme Court has vindicated Karpoori Thakur’s approach to address social injustice, deprivation and inequality in the society. Bihar caste survey of 13.07 crore people was released on Mahatma Gandhi’s birthday in 2023 data in pursuance of the same approach. It illustrates that the legacy of Karpoori Thakur is alive.

The assent of the President to the Press and Registration of Periodicals Act, 2023 on December 28, 2023 after the passage of the Bill [1] from the Lok Sabha on December 23, 2023 and by Rajya Sabha on August 3, 2023 amidst uproar is akin to the passage of anti-Press Bill at the behest of Bihar Chief Minister Jagannath Mishra amidst bitter protest. As leader of the opposition, Karpoori Thakur had filed a writ in the Patna High Court challenging the latter. Jagannath Mishra attempted to get Section 292 of the Indian Penal Code (IPC) and Section 455 of the Criminal Procedure Code (CrPC) amended. The Bihar Press Bill which amended these criminal laws was introduced and passed on July 31, 1982 by the state legislature within five minutes by voice vote amid disorder. The amendment gave the state government the authority to prevent the printing and publishing, "of grossly indecent or scurrilous matter or matters intended for blackmail". It faced protest from the journalists, publishers, editors, distributing agents, hawkers and readers. The CrPC was amended to make the offence cognisable and non-bailable. It empowered the police to arrest any journalist and have him tried by an executive magistrate as opposed to judicial magistrates who function under the High Court who are under the control and direction of the State Government itself.. If the offence is proved, the offender was to be jailed up to two years with or without a fine. If the offence was repeated, he/she was liable to be jailed for up to five years with a fine. Amidst bitter protest from opposition leaders, large number of Congress legislators and journalists in Patna and New Delhi, Jagannath Mishra had cited a similar law in Tamil Nadu to defend his amendment Bill without disclosing the fact that the Tamil law has been challenged the validity of the law in the Madras High Court. Decades later, on October 26, 2017, Jagannath Mishra regretted his decision. "I admit that I should not have brought the Bihar Press Bill" based on the briefing of Vasant Sathe, Union Information and Broadcasting Minister. [2]

Had Karpoori Thakur been alive he would have contested the new press law and the proposed 60-page long Broadcasting Services (Regulation) Bill, 2023 which restricts freedom of media. The latter has 77 instances where the Union Government will make the law through subordinate legislation. [3] In such a situation, what constitutional function will the Union legislature perform? In the absence of leaders of like Karpoori Thakur such anti-media legislations are not getting adequate democratic resistance.

The Editors Guild of India has expressed grave concern over “draconian provisions” in the Press and Registration of Periodicals Bill, 2023 [4] and the draft Broadcasting Services (Regulation) Bill, 2023. With regard to the former it’s advice to the Lok Sabha Speaker to refer the Bill to a Parliamentary Select Committee was not paid heed to. The Bill was passed in the Rajya Sabha by a voice vote in the Opposition’s absence. The new legislation “widens the powers of the state to have more intrusive and arbitrary checks” in how a publication functions, adding that some of the provisions were “vague” and the ambiguity could have “adverse implications on press freedom”. The statement signed by Seema Mustafa, Anant Nath, and Shriram Pawar, the office bearers of Editors Guild of India points out that the new law allows government agencies other than the press registrar to conduct its functions, which could even include police and other law enforcement agencies, and called the move “deeply distressing”. It allows the government to deny the right to bring out a periodical, to persons convicted of “terrorist act or unlawful activity” or “for having done anything against the security of the State”. For instance, Section 19 of the new law gives the Union government powers to frame rules under which news publishing is to be done in India. It empowers the government to arbitrarily define what constitutes “unlawful activity” and what is against the “security of the State”. The emphasis of the new law is on “regulation” rather than ‘registration’. [5]

As to the draft Broadcasting Services Bill, Editors Guild of India has expressed its concerns regarding Union government’s powers to monitor and block content, prohibit transmission on vague grounds, and a system of self regulation that allows govt great control. [6]

The draft Broadcasting Services (Regulation) Bill is ridden ambiguous definitions and huge space for subordinate legislations. The proposed inclusion of online news publishers and Over-the-Top (OTT) broadcasters under the same regulatory framework as the other traditional broadcasters such as cable TV and radio is irrational, arbitrary and unjust. The risks associated with applying stringent rules and codes to “OTT” broadcasters include increase in financial and compliance burden. The definition of the “programme” in the Bill implies that digital websites could be included in the phrase, “writing”. The writing has been kept vague to not be restricted to a reference. The merger of news (independent news websites, individuals now established as popular points for news and views, explainer videos, other audio-visual material available online) with OTT content, shows, serials, documentaries and other features traditionally subject to a certification is unjustified. The news for the first time is being put into a Central Board of Film Certification (CBFC) inspired institutional structure reserved for cinema. These are the first steps to establish a blueprint for pre-censorship. It is an invitation for misuse of law. [7]

This Bill normalises the snatching of devices and tools of researchers and journalists. The Bill does not pay heed to the recommendations of Union government’s Shyam Benegal committee from 2016 against parochial approach to censoring content. The bill extends the Ministry’s regulatory ambit to any person who broadcasts news and current affairs programs through a digital medium (such as online paper, news portal, website, social media intermediary, or other similar medium). It applies to every person. It is not confined to media companies or journalists, who chooses to share news as part of a ‘systematic business, professional, or commercial activity’. The Bill raises concerns regarding how “news and current affairs” is defined. It is a threat to journalistic expression and the right to access diverse points of view.

Notably, in protest against the anti-Press Bill, Karpoori Thakur had sat on Dharna with journalists and photographers for several days in Patna. [8] His legacy creates a compelling logic against Registration of Periodicals Bill, 2023 [9] and the draft Broadcasting Services (Regulation) Bill, 2023.

Adjudicating in the case of Karpoori Thakur v. Abdul Ghafoor, Justice S.N.P. Singh refused to grant relief to Karpoori Thakur on the ground that “It is a well-settled principle that if an alternative remedy is available, the High Court will not exercise its discretionary powers of issuing a writ of mandamus. The application of the petitioners is, therefore, liable to be dismissed on this ground as well.”The order was passed on on May 3, 1974. Arguing on behalf of Abdul Ghafoor as the Chief Minister, the Advocate General had argued that there are ample provisions in the Constitution itself in respect of the contingency under which the Government for the time being finds its policy overthrown by the House, the Court cannot supplant a further remedy. [10]

The available remedy was that given the fact that the Chief Minister and the other Ministers of the Council of Ministers are appointed by the Governor and they hold office during the pleasure of the Governor, the Governor is the proper authority to dismiss the Chief Minister and the Ministers if he is satisfied that the Chief Minister and the Council of Ministers do not command support of majority of the members of the House of the Legislative Assembly. The other alternative is that if a Ministry does not command support of the majority of the members of the House of the Legislative Assembly, it may advise the Governor to dissolve the Assembly and the Assembly may be dissolved by the Governor. The Court cannot supplant a third remedy and ask the Chief Minister to resign. Karpoori Thakur’s case was that prorogation of the State Assembly without debating on motion of thanks established that Abdul Ghafoor led State government did not enjoy the confidence of the House and as such it is no longer a validly constituted Council of Ministers constitutionally entitled to carry on the work of the Government. He contended that the Assembly was prorogued on the advice of Abdul Ghafoor, the Chief Minister and his council of Ministers because they realised that they had lost confidence of the House and they were not in a position to get a motion of thanks on the Governor’s address adopted by the House. Karpoori Thakoor had prayed for issuance of a writ in the nature of mandamus to Abdul Ghafoor commanding him to tender his resignation and the resignation of other Ministers of the Council of Ministers and to restrain him from functioning as the Chief Minister of Bihar.

Karpoori Thakur had alleged that the Speaker of the Assembly had arbitrarily adjourned the House sine die. But Thakur’s lawyer Basudeva Prasad did not advance any argument on the question of adjournment of the House sine die by the Speaker. Basudeva Prasad had argued that it was the constitutional obligation of the Chief Minister to obtain vote of confidence of the Legislative Assembly by successful passage of the motion of thanks on the Governor’s address after due debate and voting in the first Session of the year and by that the approval of the Lower House to his Government’s legislative programme and policy involving expenditure from the State funds etc., for the current year. The Chief Minister having failed to do so due to the prorogation of the House ceased to have the requisite constitutional and legal authority to continue in office with his Ministers and to advise the Governor in exercise of his functions under Article 163 (1) of the Constitution. In the absence of the existence of confidence of the lower House in the Chief Minister and his Government it is mandatory constitutional duty of the Chief Minister to resign from his office. The prorogation of the House only after the notice of the motion of thanks and amendments to the address had been circulated terminated the entire proceeding beginning from ’the Governor’s address. Since the proceedings relating to the Governor’s address cannot be renewed because of the bar under Article 176 (1) of the Constitution, the Legislative Assembly stands paralyzed for the future. It cannot, therefore, transact any business including passing of the Finance Act for Government expenditure after the 30th July, 1974. Thus the democratic Government in the State with Abdul Ghafoor as the Chief Minister has been made impossible. The Court was not convinced.

From the perusal of the documents on record, it emerges that the facts submitted by him to the Court were not disputed, Karpoori Thakur lost the case on procedural ground. Abdul Ghafoor’s continuance as Chief Minister was illegitimate but technically legal.

Adjudicating in Karpoori Thakur v. State of Bihar, Justice Nagendra Prasad Singh of Patna High Court concluded that “whenever the Speaker recognises any person as a leader of opposition he does so on the basis of precedent or practice of the Legislature in question, keeping in view at the same time, the definition in the Act, If the basis of recognition is not the Act in question but the practice prevailing then he has to follow the practice of recognising the leader of an opposition party which has not only the greatest numerical strength as required by the definition in the Act, but has also one-tenth of the total membership of the House. In that event, it is difficult to hold that the impugned decision is illegal or unconstitutional.” [11] Accordingly, the writ application of Karpoori Thakur was dismissed on December 16, 1982. In his writ application Karpoori Thakur was seeking to know whether the cancellation of his recognition as the leader of opposition in the Bihar Legislative Assembly was valid and legal. The Speaker of the said Assembly had recognised him as Leader of Opposition in the Bihar Legislative Assembly. The decision of the Speaker was communicated to him July 1, 1980. In that communication it was mentioned that as the Karpoori Thakur was the leader of a party which had the strength of 42 MLAs in the Assembly which had the greatest numerical strength of a party in opposition, the Speaker was declaring the Karpoori Thakur as the leader of opposition in the State Assembly. Subsequently, there was a split in his party of which Karpoori Thakur was the leader and the strength of the party of which Karpoori Thakur remained the leader was reduced to 31 MLAs.

On October 4, 1982, the Speaker of the State Assembly had communicated to Karpoori Thakur that as the number of the members in the Assembly of the party of which he was the leader had been reduced from 42 MLAs to 31 MLAs, the recognition of him as leader of opposition was being canceled. There was no dispute that the party of which Karpoori Thakur was the leader continued to be the largest party in terms of numerical strength of MLAs on the opposite side in the Assembly. Karpoori Thakur had argued that till the party in opposition of which he is the leader commands the greatest numerical strength in the Assembly, the speaker has to continue to recognise him as the leader of the opposition. It was a reasonable demand but the Justice Singh did not accept the contention of Karpoori Thakur’s lawyer that Section 2 of the Bihar Legislature (Leaders of Opposition Salary and Allowances) Act, 1977 enjoins the Speaker to recognise any person as the leader of opposition during a session of the Assembly nor any procedure for such recognition has been prescribed under the Act. His lawyer had argued that although Section 2 is labeled as definition, it should be read as a substantive provision of the Act which while defining the expression "Leader of Opposition" which casts a statutory duty on the Speaker to recognise the leader of the party having greatest numerical strength in the House, as the leader of opposition.

Justice Singh observed that Section 2 which defines ’leader of opposition’ cannot be construed to mean that it enjoins the Speaker to recognise any such person in the Assembly as the leader of opposition. It is evident from the facts on record that Karpoori Thakur’s contention was cogent but he did not get justice from the Patna High Court.

This was not going to be the first time that he became a victim of injustice by the Speaker of Bihar State Assembly.

As per the proceedings of the state assembly dated January 13, 1988, on August 11, 1987, Assembly Speaker Shiv Chandra Jha unseated Karpoori Thakur as leader of the Opposition bringing disrepute to the office of the Speaker. The Opposition’s anger over the Speaker’s ruling reached the streets of Patna. The Opposition had petitioned Bihar Governor P. Venkatasubbaiah. It called on Lok Sabha Speaker, Balram ]akhar. It sent memorandums against Shiv Chandra Jha to speakers of assemblies throughout the country. Inside the House, the opposition moved no-confidence and "removal" motions against the speaker. Instead of ruling on the removal motion, Jha adjourned the House sine die, three days ahead of schedule. Jha removed Karpoori Thakur from the office of the leader of the opposition in the state assembly, although he had the majority of opposition MLAs with him. Thakur had even paraded the ML As supporting him before the Governor, but Jha as Speaker did not reverse his ruling. A writ petition no. 3984 of 1987 was filed in the Patna High Court on September 2, 1987. The High Court dismissed it on September 8, 1987. Karpoori Thakur filed a petition-special leave to appeal civil no. 11678 of 1987 alongwith civil miscellaneous petition no. 25127 of 1987. The Speaker refused to decide his case saying the matter was sub judice. [12] Karpoori Thakur kept fighting against Speaker Jha’s unjust and arbitrary ruling till the end of his life in the Court. The preliminary inquiry into Court’s records appears silent with regard to the fate of his petition. The details of the case do not seem to be on websites of the High Court and Supreme Court. The records merit further examination to ascertain the exact nature of the judicial outcome. The proceedings of the state assembly reveal that state assembly’s presiding officer had not decided the claim of Karpoori Thakur citing the fact that the matter was sub judice before the Supreme Court.

In Minister’s Misconduct, A.G. Noorani writes, "No account of the misfortune which Bihar suffered at the hands of ministers’’ like Lalit Narayan Mishra and Lahtan Chowdhary, will be complete without a reference to Justice K .K. Dutt headed Commission of Inquiry appointed by Karpoori Thakur led ministry on May 27, 1971 to inquire into allegations of misuse of funds of Bharat Sevak Samaj (BSS) in the Koshi project. [13] Justice Dutt was a former judge of the Patna High Court. One of the terms of reference of this Commission was "whether the Bharat Sevak Samaj through Central Construction Committee and Kosi Project Construction Committee, on the plea of public co-operation obtained the construction work in the Kosi Project and through its unit leaders received advances of money between the year 1955 and 1962 out of which over 23 lakh rupees became irrecoverable on account of the non-existence of the units leaders set up by Mr. Lalit Narayan Mishra and Mr Lahtan Chowdhary and whether the said sum of money or any portion thereof was defalcated, thereby causing wrongful loss to the Kosi Project Administration and the Government." Mishra was the Chairman, Central Construction Committee of BSS and Choudhary was its Secretary. Karpoori Thakur led state government was within its right to set up the inquiry commission into matters in which a Union minister, Mishra was involved before he became a Union minister. But this judicial inquiry Commission was disbanded and not allowed to complete its task after the fall of the Karpoori Thakur led government. The demand for revival of the Justice Dutt Commission was ignored.

Such instances of discontinuance of judicial inquiry by governments create a compelling logic for divesting the governments of the power to discontinue inquiries under the Commission of Inquiry Act, 1952. This law is an imitation of English Tribunals of Enquiry (Evidence) Act, 1921 but unlike the Indian law, the English law does not confer on the government the power to discontinue an inquiry.

Karpoori Thakur led government’s decision to probe the misuse of funds was vindicated by 38-page long 53rd report of the State Assembly’s Estimates Committee which charged the contractors of "Mishra family of Balua Bazar in Saharsa District" that it had been paid much higher amounts of money than other contractors doing similar works and that unusual favoritism had been shown to the family.

It was only later that Jyotirmoy Basu, the noted parliamentarian had moved a motion on December 18, 1974 in the Lok Sabha saying, “ That this House resolves that Shri Lalit Narain Mishra, a Member of this House and a member of Cabinet be removed from the membership of this House for committing serious improprieties and malpractices as could be seen from the Report of the Commission of Enquiry into the affairs of Bharat Sevak Samaj and in particular as reported in the said Commission….” [14] He pointed out that The Public Accounts Committee, in its 34th Report (Third Lok Sabha) for the year 1964-63 commented adversely about the non-preparation of the Consolidated Audited Accounts of the Bharat Sevak Samaj snowing the overall financial position and wanted the Planning Commission to insist on the submission of such accounts by the Bharat Sevak Samaj from the beginning They allowed a time limit of six months for the submission of such accounts and recommended that no further grants should be given unless and until this was done. It reads: “ The Bharat Sevak Sumaj could not render the requisite Consolidated Accounts within the six months allowed by the Public Accounts Committee and they requested for the release of grants and also asked for a proforma for the submission of the Consolidated Accounts to toe prescribed by the Government.” “The Public Accounts Committee of the Fourth Lok Sabha again reverted to this matter... ” It was in this backdrop that Justice Jeevan Lal Kapur Commission of Inquiry into the Affairs of the Bharat Sevak Samaj- Report was constituted in 1969 by the Department of Community Development, Union Ministry of Agriculture which submitted its report in 1973 came into existence. (Justice Kapur is the same judge who headed the one-man Commission to conduct an inquiry into the conspiracy to murder Gandhi on 21 November 1966 and was completed on 30 September 1969.) Notably, Indira Gandhi had given a reply to a question on allegations against L.N. Mishra in Rajya Sabha December 12, 1974. The subject of the judiciary inquiry commission on Kosi project constituted by Karpoori Thakur reverberated in the parliament for several years.

The legacy of corruption in the Kosi project continues to undermine Bihar’s prosperity. Notably, on Sept 11, 2008, Nitish Kumar led the government setup a one-man judicial inquiry commission to enquire into the causes of the breach in Kosi Afflux Bund in August 2008. Justice Rajesh Balia, a former chief justice of the Patna High Court the head of the Commission submitted its report in March 2014 with recommendations for remedial measures. Kosi river basin and its residents continue to cry for remedial measures to restore the landscape and drainage system fragmented by corruption of the initial years. Significantly, the terms of reference of Justice Balia Commission included the period for which Justice Dutt headed the judicial inquiry commission was constituted by Karpoori Thakur.

As tribute to the memory of the real subaltern hero, a high-powered commission ought to be set up to undo the damage done to Kosi river basin by structural corruption and to revive the drainage system of Kosi, a major tributary of the Ganga.

The history of the political parties, legislature, the High Court, the governments and the Supreme Court demonstrates that Karpoori Thakur’s moral stature remains taller than those who were unjust towards him and his just cause.

(Author: Gopal Krishna is a law and philosophy researcher and a lawyer. He is the co-founder of East India Research Council (EIRC) and the editor of ToxicsWatch Journal. Web: www.eirc.in)