Ashok Bhan
Uttarakhand High Court has stopped the misuse of Article 356 by setting aside the proclamation of imposing President Rule in Uttarakhand. This is yet another historical triumph of democracy and victory for the majesty of Law and Judiciary.
The Quasi-federal Constitution of India made to operate as Unitary with bias towards the Centre has been blunted by another Judicial intervention.
Toppling a State Government with the majority support in the State Assembly is not an easy job. It requires an astute, careful and calibrated orchestration and acquiescence is not concurrence, from various Constitutional functionaries. The Speaker who conducts the business of the State Legislature, and has the power to disqualify a member, is the most important player. The suspension or disqualification of a member by the speaker is justiciable and can be set aside by the High Court or Supreme Court.
The ruling party at the centre and the Governor of the State has to be on the same page. The discretion of the Governor plays a huge role when he calls upon an incumbent Chief Minister to prove his majority on the floor of the House. The Governor grants time to a beleaguered Chief Minister to seek majority vote. At the same time he / she is enjoined with the duty to ensure that there is no breakdown of the Constitutional machinery in the State. If at any time he / she arrives at such opinion and reports to the Central Government, the Centre can intervene, impose Governor’s / President’s rule and dismiss the elected State Government.
Congress party in Uttarakhand claimed victim hood at the hands of NDA Govt. The party challenged the imposition of President’s rule before the High Court at Nainital. The single judge did not pass any order on the legality of the President’s rule nor did it stay the proclamation. Single Judge issued directions for the floor test, in order to prove the majority by the ruling party.It appeared a flawed order.The division bench has after hearing at length the concerned Parties rightly set aside the Presidential order and ruled for the test of Majority on the floor of the assembly.
As a constitutional Lawyer in Supreme Court, I found it incomprehensible and impressible legal proposition,as to how the floor test can be ordered by the single Judge when a Presidential Proclamation is in force and the assembly is in suspended animation. The single judge permitted the alleged disqualified legislators to vote and their votes be kept in sealed cover to be taken.The division bench has set right the flaw and aptly applied the existing doctrine of jurisprudence in such matters.
In , in 1953 non -Congress Party Government (PEPSU) was dismissed, leading to Congress Party victory in the elections that followed. In 1959 Communist Party Government in Kerala was dismissed. After Emergency in 1977, the Janta Government at the Centre, dismissed the Congress Party ruled States – it was challenged. The seven Judge Bench of Supreme Court dismissed the petition on several grounds. Some Judges opined that the Presidential power under article 356 is not justiciable.
When congress party returned to power at centre in 1980, it dismissed the Janta Party ruled State Governments. The invocation of President’s Rule to facilitate or to recover from political horse trading or to recover from Political horse-trading continued through the 1980’s. Notable was Jammu & Kashmir under section 92 of Jammu & Kashmir Constitution, where Farooq Abdulla was dismissed and replaced by G.M. Shah aided by Governor Jagmohan.
Governor Ram Lal in Andhra Pradesh dismissed N.T. Rama Rao, NTR packed off his legislators to Karnataka where Rama Krishna Hegde of Janta Party was the CM. Then they were paraded before the President. The practise of seclusion and transportation of MLAs to prevent their defection owes to this particular theatre by N.T. Rama Rao”s ingenuity. 1985, Constitutional amendment made retail floor crossing ground for disqualification for membership of Parliament or the State Assemblies. The Supreme Court in Kihoto Hollohan v/s Zachillu and Ors. ruled that Speaker’s decision on disqualification were subject to judicial review.
S.R. Bommai’s case was decided by nine judge bench of Supreme Court. It ruled that President’s Satisfaction in invocation of Article 356 shall be inquired into by the High Courts and Supreme Court. It upheld the dismissal of BJP Governments to protect ‘Secularism’. That is part of basic feature of the Constitution. The Supreme Court further held that in no case should a State assembly be dissolved without Parliament approving the proclamation and the test of numbers only and be conducted on the floor of the assembly and not outside.
The impact of Bommai judgment was felt in 1997, when President Narayanan, returned United Front Govt.’s recommendation to impose President’s rule in Uttar Pradesh.
A year later President Narayanan returned the recommendation by P.M. Atal Bihari Vajpayee to impose President rule in Bihar. Bommai doctrine was applied in 2005 when Governor Buta Singh after an inconclusive election recommended dissolution of Assembly. The Court struck that down and eventually Buta Singh had to resign.
It may be noted that Nineties saw no Government of India with absolute majority for any one party – “The Constitutional norms began to settle and enforced by the organs of the State that are not overwhelmed by a strong political leadership with dominant majorities.
The onset of One Party majority Government at Centre is witnessing the test of set dynamics of past decades. Recently the spurt of efforts to invoke Article 356 has been seen and more such instances seem to be on the horizon. The Supreme Court heard the challenge to imposition of President’s rule in Arunachal Pradesh for near a month. The Judgment awaits, though the realignment of politics has been able to put a Govt. in place. The Uttarakhand case too is likely to reach the Hon’ble Supreme Court after the division bench of the High Court has set aside the Presidential order of imposing President Rule without waiting for the result of the floor test.
The doctrine of law settled in Bommai and Rameshwar Prasad cases are in place the question is of the willingness of the Judicary to cut through the Political Ticket in time to be of consequence to the Political Process. In the absence of an effective Judicial interdict, a majority Government may well be tempted to brave adverse comments in the distinct future, if there is ‘immediate gain of adding another outpost to the empire. The real test is whether the judiciary is willing to reinforce and apply the settled doctrine in the changed climate of the current political regime. The answer is optimistic ‘yes’. The setting aside of the law to upset the collegium system for appointment of judge is the great example of Supreme Court’s majesty as custodian of citizen’s rights. And now the Uttarakhand High Court has further reinforced the citizens trust and faith in the Judiciary.
For invoking Article 356 of the constitution, that empowers imposition of President’s Rule in a state, the Pre- Requisite is the failure of the state Government to act in accordance with the provisions of constitution and a constitutional impasse in a concerned state. It can be invoked when the State Govt., is messed and menaced with internal disturbances and political unrest.
Supreme Court of India has ruled, that imposition of President’s Rule in a state is not totally immune from judicial review. If it is established that Article 356 of the constitution has been invoked not for the real reasons or apprehension of breakdown of constitutional machinery in a state, but for the extraneous purpose of toppling a duly elected state govt., then the President’s rule can be declared as unconstitutional.
The Supreme Court or the High Court, however is not concerned with the wisdom or the adequacy of the material on which President’s rule was based but whether power under Article 356 was exercised mala fide or arbitrarily.
Earlier Arunachal Pradesh and now the uttarakhand have shot into national prominence. The incessant discussions on TV channels, the judicial proceedings challenging the President’s rule, the order of High Court to ask for floor test to prove majority in the legislative assembly and the challenge to such order and subsequent stay of single bench’s order. The judgment is awaited in Arunachal case from the Supreme Court and the proceedings are on in the division bench of Nainital High Court. The silver line is “That the Courts in this country can rule on the imposition of the President’s rule in the states has become a serious matter in the polity of our nation.”
The question of majority and minority is irrelevant for invoking article 356 of the Constitution. Imposition of President’s Rule cannot be limited or made conditional or upon whether the Particular State Government has the numbers. This may be one of the important factors but not the sole consideration. The paramount aspect and factor constitutional remains, whether the Government of the State is carried or not carried or in accordance with the provisions of the constitution. For example, a State Government is pursuing the Policy of blatant discrimination against certain sections of its population in the matter of socio-economic equitable development, based on caste or creed or religion, the failure of law and order.
The legislative check and balance for arbitrary exercise of Power under Article 356 is that Article 356(3) mandates, the proclamation imposing President’s Rule has to be laid before each house of Parliament and shall cease to operate after two months, unless before that expiration it has been approved by resolutions of both houses of Parliament. It is now unlikely that NDA Govt. will have requisite majority in the Rajya Sabha, in that case President’s Rule in Uttarakhand will cease after two months’ expiration under Article 356(3).
President’s Rule entails serious consequences in the federal structure which is the basic feature of the constitution of India. The courts in this country should not prevaricate when such momentous issues arise. The higher judiciary in India the custodian of the people’s legitimate expectations and their rights. Higher Judiciary has to take a call to remember its role is always to determine the constitutionality of the President’s Rule and not travel in the realm of its morality and its wisdom. The Courts have full authority and Powers to rule on this serious constitutional power of imposition of President’s Rule in the States.
(The Uttrakhand High Court has lived to the expectations of the people and upheld the majesty of Law and the Judiciary.That is real triumph of Constitutionalism.)
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