President’s rule, too powerful for comfort

Uttarakhand High Court Chief Justice KM Joseph and Justice VK Bist, in a historic verdict, not only quashed the imposition of President’s Rule in the state but also reinstated Harish Rawat as chief minister. The court rightly held that misuse of Article 356 does “undermine federalism and breeds cynicism in the hearts of citizens”. The Congress was rightly criticised for abusing such emergency powers when the party was in power. The extraordinary powers under Article 356 are to be used as a “last resort and with greatest care”, said the two-judge bench. The stay of the order by the Supreme Court till April 27 on the assurance by the attorney general that President’s Rule would not be revoked will not end this debate on the use and misuse of powers under Article 356. It may be recalled that the Centre had refused to give such an assurance to the Uttarakhand High Court.

‘Constitutionalism’ is an idea of limited government. It means the powers of the state must be restricted. Article 356 gives too wide powers to the Centre to dismiss elected governments. Doing so by encouraging defections from the ruling party and then asserting that the government lost its majority is not only unethical but damages the BJP’s reputation as a ‘party with a difference’.

In the SR Bommai case (1994), the Supreme Court had observed that the powers under Article 356 were extraordinary and must be used sparingly. The Uttarakhand High Court was bound to follow this precedent and that’s why it came down heavily on the Centre and observed that it was behaving like a private party in search of finding opportunities to topple opposition governments.

Our courts were initially wary of interfering in purely ‘political questions’ under Article 356 and avoided judicial scrutiny of the emergency powers. But, due to the frequent misuse of such powers, courts started examining the question of the ‘breakdown of constitutional machinery in the state’. When the Janata government in the 1970s proposed dismissing nine Congress governments in one go, the Supreme Court asserted its powers of judicial review to examine “if the executive action was mala fide or there were extraneous considerations or where President failed to take into account relevant considerations”. Decades later, the dismissal of the Sunderlal Patwa government was held unconstitutional by the Madhya Pradesh High Court.

In 1993, the Pakistan Supreme Court had reinstated the Nawaz Sharif government, dismissed by the President, and our apex court had relied on this verdict in deciding the landmark decision in the Bommai case, in which a nine judge Bench held that a presidential proclamation was judicially reviewable to the extent of examining whether it was at all issued on the basis of any material, or whether the material was relevant, or whether the proclamation was issued in the mala fide exercise of power. The imposition of President’s Rule in Karnataka, Meghalaya and Nagaland was held unconstitutional. However, the deposed governments were not revived because elections had intervened thereafter.

In 1996, a full bench of the Allahabad High Court had quashed the extension of President’s Rule in UP beyond a year because there was neither a national emergency in operation nor had the Election Commission of India certified that fair and free elections could not be held in the state. In 1997, the Patna High Court in an unprecedented order disapproved of the functioning of the Bihar government and recommended President’s Rule in the state, saying the President need not act just on the governor’s report to invoke Article 356. The court cited a CAG report on the irregularities committed by the government in various employment programmes.

The Union government’s unusual powers to dismiss a state government in a multi-party country like India can be used against opposition-run state governments. Indira Gandhi as prime minister frequently used such powers to dismiss even Congress governments. No other liberal democratic constitution in the world except that of Pakistan has incorporated such an undemocratic provision. As a matter of fact, both India and Pakistan adopted this highly regressive provision from the infamous Government of India Act, 1935. Our freedom fighters had protested so much against this provision that the British government was compelled not to implement this provision.

The President can exercise powers under Article 356 ‘either on the report of the Governor or otherwise’. On the inclusion of the word ‘otherwise’, which means the President may act even without the governor’s report, some members of the Constituent Assembly vehemently opposed it and called the Drafting Committee, headed by BR Ambedkar, a “Drifting Committee”. Shibban Lal Saxena said that “we are reducing the autonomy of the states to a farce”; Naziruddin Ahmad saw it as a serious encroachment of provincial autonomy when he said that “I think we are drifting, perhaps, unconsciously, towards a dictatorship”; HV Kamath went to the extent of saying that “let us wind up the Constituent Assembly and go home”.

President’s Rule can be imposed if there is a ‘breakdown of the constitutional machinery in the state’. What does this expression mean? Article 356 says that if any piece of advice is given by the Centre and a state government does not comply with it, it shall be deemed that ‘there is breakdown of the constitutional machinery of the state’. It does not mean corruption or misuse of powers by the Speaker.

President Pranab Mukherjee should have followed the sound precedents set by KR Narayanan, who twice returned recommendations to invoke Article 356. Prime Minister Narendra Modi must allow the people to punish inefficient Congress governments or let them go out of office by getting them defeated on the floor of the assembly. Let him not achieve a Congress-mukt Bharat by employing the Congress’ strategy of dismissing opposition governments.

Prof. Faizan Musthafa is the Vice-Chancellor, NALSAR University of Law, Hyderabad. This Article is first published in Hindustan Times. LiveLaw republishing it with the permission of the Author. 

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