International Journal of Law and Legal Jurisprudence Studies

President’s rule threat to regional identities: An approach to understand Constitutional Centralization and Constitutionalism. —Dar Akhter Rasool ,LL.M (Criminal Justice System)School of Legal Studies,Central University of Kashmir

President’s rule threat to regional identities: An approach to understand Constitutional Centralization and Constitutionalism

 

“Power tends to corrupt, and absolute power corrupts absolutely.”… Sir John Dalberg-Acton

ABSTRACT

The Indian Constitution embodies the principle of federalism for the governance of the country but fails to adhere to the pious contents of the federalism. History speaks of the blatant encroachments made by successive governments to defeat the principle of federalism. Till 1980, the party in power at the Centre has used Article 356 beyond Constitutional limitations. It can easily be remarked that, the life of government of a party in a State, different from one in power at the Centre, has always been vulnerable.

But, with the end of ‘one-party dominance system’, the regional identities (States) have gained tremendous influence and became assertive, vocal and entrenched. The space for the State regional parties to assert themselves at the national level opened up as a result of increasing regionalization of Indian politics. The article focuses on the political instability of regional political parties and inherent fear to their existence in the light of Article 356 of the Constitution. Further, the article analyses the impact of coalition politics over the re-birth of sub-national units and finally, consolidates the efforts of various committees and the Supreme Court of India, to properly channelize the invocation of Article 356 of the Constitution. 

 

Keywords:      Article 356, Constitution, Centre, Emergency, Federalism, Governor, President.

 

Introduction:

Federalism has been part of the public discourse in India for many decades before and after independence in 1947, but it has gained greater importance since the 1990’s when the country’s national polity saw the advent of the ‘coalition era’. With the Subnational Units (states) now asserting their position in areas which were considered the prerogative of the Centre, the federalism in India has come under considerable strain. The role of sub-national units in international affairs is a growing subject in the literature on federalist affairs.[1] Scholars of law and political science have traditionally seen the conduct of foreign policy as the exclusive domain of the national government. The Indian Constitution has given the Centre particularly strong powers – so strong, in fact, that some have described it as “quasi federal” because of the lack of autonomy it affords to the states.[2] Yet there is an increasing consensus that the states have not been shy of foreign policy advocacy. The nation has been witnessing the emergence and growth of regionalism and strong identity politics. States are increasingly assuming significance in the backdrop of more and more political parties occupying the political space which till 1967 was primarily the turf of Indian National Congress.[3] Federalism in India has a strong bias towards the Union Government/Centre.[4] For instance, there is no equality of state representation in the Parliament and representation can vary widely from one state to another depending on a number of factors including demography and total land area, the vesting of residuary powers with the Centre, priority to national Parliament laws over state laws under the Concurrent list[5], the over-centralization of power in case of emergency, etc.

 

The Past:

The Congress in the year 1975 passed the Constitutional (Forty-second Amendment) Act, 1976 which sought to curtail the civil liberties, trimmed the powers of the Judiciary and was directed to make the Parliament supreme[6]. In a speech in the Lok Sabha on 27th October 1976, Indhira Gandhi claimed that:

“… the amendment is responsive to the aspirations of the people and reflects the realities of the present time and the future”[7].

On 26th June 1975, the Bombay edition of the Times of India printed the obituary of Democracy:

‘D’Ocracy – D.E.M., beloved husband of T.Ruth, loving father of L.I. Bertie, brother of Faith, Hope, Justice, expired on 26th June[8].

In Delhi, everyone knew. The Tonga-wallahs clucking to gaunt horses knew. The autorickshaw drivers dodging through traffic knew. The push-cart seller with their mounds of oranges knew. The stringers of marigold blossoms before the temples, and the men, haunches on heels, puffing their bidis knew. That is, everyone knew except the Prime Minister and her followers. They knew that Indhira Gandhi would be defeated in the elections called for March 1977 and that her son, his coterie and his bullies would go with her[9].

 

On 24th March, 1977, the Janata Part after feeling the pain in the jails promised to restore the constitution and democratic practices under it. Morarji Desai took the oath as Prime Minister. At a later press conference with Jayaprakash Narayan beside him, he promised to accept Narayan’s advice and said that, “Janata – would make the people fearless and preserve democracy”[10]. But the fact remained that both the parties resorted to ill use of Article 356 against each other and also used it as a tool to deprive one another of the power. The Prime Minister’s defeat laid the foundation, in the country, for the first national coalition government.

 

 

Article 356 – Failure of Constitutional Machinery in States:

Article 356 (Provisions in case of failure of Constitutional machinery in states) has been invoked more than 108 times since India’s republican Constitution was adopted in 1950[11]. Article 356, which empowers the Centre to dismiss a state government and impose ‘Presidents Rule’ in the event of a ‘breakdown of constitutional machinery’, is based overwhelmingly not on a point of principle but on contingent historical circumstances. Imposition of Presidents Rule (Article 356) negates the federal character of the Indian Political System and it also militates against the democratic doctrine of ‘popular sovereignty’ since an elected government is suspended. A proclamation by the President under Article 356 has the effect of vesting with the Parliament all the functions of the Legislative Assembly of the given State and the effect of vesting the complete executive power of the State Government with the President.

Dr. B.R. Ambedkar, the chairman of the Drafting Committee of the Constituent Assembly, expressed a hope that, “… such article (Article 356) will never be called into operation and that it will remain a dead letter”[12].

 

He also pointed out that, ‘if at all the power was required to be exercised it should be done sparingly and the cause must be failure of constitutional machinery in a state’. I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces.

 

I hope the first thing he will do would be to issue warning to a Province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article’[13].

 

Unfortunately, Dr. Ambedkar’s hopes and assurances have been sadly belied. History has testified to the flagrant misuse of Article 356. Sadly every party at the Centre has succumbed to its fatal fascination.

 

Previously, Centre was strong because of ‘single-majority party’ in power and the Centre was in no mood to accommodate the aspirations of the other regional parties. If a circumstance did exist, wherein the attitude of regional party at State level seems to hurt the Centre’s ego, the State Government was to face the wrath of Article 356. And as a consequence of following the same line of attitude, Article 356 was subject to indiscriminate misuse. It has been repeatedly used with a vengeance by the ruling party at the Centre against opposition-ruled states.

 

After 1975, the custom of forming ‘single party government’ at national level seem to slack its grip. As a result of abuse of power at Centre by ‘single party government’, the pride of sub-national parties got hurt. The growth and emergence of Subnational/regional parties came to the front and they became assertive, vocal and entrenched. After 1967 General elections when the Congress party lost its power in a number of states, it became reasonably clear that the days of single party government were numbered.

 

The Governor makes his report under Article 356(1) of the Constitution in his discretion. On the face of it, it may seem to be somewhat incongruous that the Governor, who as the constitutional head of the State, acts on the aid and advice of his Ministers, also reports against them to the President. This is a case of Governor reporting against his own Government. But, under Constitution, the Governor besides being Centre’s representative is under constitutional obligation to preserve, protect and defend the Constitution[14]. It is this obligation which requires him to report to the President[15]. The Sarkaria Commission report recommends appropriately amending Article 356 to include in a Proclamation ‘material facts and grounds’ on which Article 356(1) is invoked. This, it is observed in the report, would make the remedy of judicial review on the grounds of mala fides more meaningful and the check of Parliament over the exercise of this power by the Union Executive more effective.

 

The Governor’s report, which moves the President to action under Article 356, should be a ‘speaking document’ containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356. But it is unfortunate that principles and recommendations given are disregarded in the present day and that actions have been taken that are prima facie against the letter and spirit of the Constitution of India.

 

With the rise of the regional parties with different political ideology from the party or coalition ruling at the Centre, there is always the risk of Governor’s becoming or being seen as agents of the Centre. For instance, in 1952 (Madras) and 1968 (Bihar), the Congress was invited to form the government despite lacking a majority. Recently, in August, 2013, the Governor of Madhya Pradesh, Ram Naresh Yadav, was on a collision course with the State Government. The opposition Congress Party has brought a motion of no confidence against the government. On 3rd December, 2013, the Congress urged Madhya Pradesh Governor to bar Chief Minister Shivraj Chouhan (currently under caretaker charge) from holding meet before counting. The counting will take place on 8th December, 2013[16]. The caretaker Ministry alleged the Governor of satisfying the ill motives of the Congress and attempting to bring the governance of the State under the Centre’s rule.

 

Endeavour’s to Maintain Equilibrium:

The issue came to the fore in 1969, when at the instance of Chief Minister, M. Karunandihi, a three-member expert committee was formed by the Government of Tamil Nadu under the chairmanship of Dr. P.V Rajamannar to examine the working of India’s Constitution and to recommend the re-allocation of powers between the Central Government and the States. The Rajamannar Commission[17] called for the abolition of Article 249, 356 and 357 of the Constitution, which gives Parliament the power to legislate with respect to a matter in the State List and also to determine and act on a failure of the constitutional machinery of a State due to emergencies.

The pro-State argument received a further boost in 1977, when the Government of West Bengal released a ‘Memorandum on Centre-State relations’[18]. The West Bengal Memorandum followed in the footsteps of the Rajamannar Commission by arguing that, ‘the advocacy for strong states is not necessarily in contradiction to that of a strong Centre, once the respective spheres of authority are clearly marked out’.

 

In 1988, the Justice R.S Sarkaria Commission recommended extremely rare use of Article 356. The Commission observed that:

“ although the passage, ‘…the government of the State cannot be carried on in accordance with the provisions of this Constitution…’ is vague, each and every breach and infraction of constitutional provision, irrespective of their significance, extent, and effect, cannot be treated as constituting a failure of the constitutional machinery”.

 

According to the Commission’s report, these alternatives may be dispensed with only in cases of extreme emergency, where failure on the part of the Union to take immediate action under Article 356 would lead to disastrous consequences[19].

 

In 2000, the National Commission to Review the Working of the Constitution (NCRWC) setup by BJP-led NDA Government observed that, ‘It is felt that the real source of many of our problems is the tendency of centralization of power and misuse of authority’.

 

In 2007, the UPA Government constituted a Commission on Centre-State Relations (CCSR) under the chairmanship of former Chief Justice M.M Punchhi. The basic question that the Commission identified was: “Are the existing arrangements governing centre-state relations working in a manner that can meet the aspirations of the Indian society? If not, what are the impediments and how can they be remedied without violating the basic structure of the Constitution?”[20]. The Commission observed that:

 

‘with the ever growing aspirations of the States and in some cases the concerns of the Central Government, it was felt by the Government of India that time had come to have another comprehensive look at the entire gamut of centre-state relations so that a further positive headway can be made on this important subject’.

 

Instances of Abuse:

Ÿ  President’s Rule was imposed in 13 cases even though the Ministry enjoyed a majority support in the Legislative Assembly. These cover instances where provisions of Article 356 were invoked to deal with intra-party problems or for considerations not relevant for the purpose of that Article. For instance, President’s Rule in Punjab in June 1951[21], Andhra Pradesh in January 1973[22], Tamil Nadu in 1976[23] and Manipur in 1979[24].

 

Ÿ  In as many as 15 cases, where the Ministry resigned, other claimants were not given a chance to form an alternate government and have their majority support tested in the Legislative Assembly.  For instance, Proclamation of President’s Rule in Kerala, in March 1965[25] and in Uttar Pradesh in October 1970[26].

 

Ÿ  In 3 cases, where it was found not possible to form a viable government and fresh elections were necessary, no caretaker Ministry was formed.

 

Ÿ  In as many as 26 cases, it would appear that President’s Rule was Inevitable. In 18 cases, the wholesale dismissal of State Governments and State Legislative Assemblies in 1977 and 1980 by the Congress and Janata Party on the ground of people having lost faith in the parties which were holding office in those States.[27]

 

It follows from the facts stated above that more often than not power under Article 356 was exercised wrongly. The Supreme Court proceeded to precisely check this abuse through its decision in S.R Bommai case. Though, in the said decision no effective relief could be given to the State Governments and Legislative Assemblies which were wrongly dismissed/dissolved.

 

S.R Bommai’s Case – Judicial Involvement:

S.R Bommai v. Union of India[28] was a landmark in the history of Indian Constitution. It was in this case that the Supreme Court marked out the paradigm and limitations within which Article 356 was to function.

In the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India:

 

After the Supreme Court’s judgment in the S.R. Bommai case, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed”.[29]

 

The summary of the conclusions of the case deserves mention:

 

(1)        The ‘satisfaction’ contemplated by the Article 356 is subjective in nature.[30]

 

(2)        The power conferred by Article 356 upon the President is a ‘conditioned power’.[31]

 

(3)        The President, pending an approval from the Parliament, cannot dissolve the Legislative Assembly but can only suspend it.[32]

 

(4)        After invocation of Article 356, the Government in power has to go.[33]

 

(5)        If the Parliament disapproves the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, Government which was dismissed revives.[34]

 

(6)        The Proclamation under Article 356(1) is not immune from judicial review.[35]

 

(7)        If the Court strikes down the proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly.

 

Thus, it can be seen from the above conclusions of the Supreme Court that the President’s power under Article is not absolute or arbitrary. The President cannot impose Central rule on a State at his whim, without reasonable cause.[36] In spite of such bold and illustrious judgement delivered by the Supreme Court, people criticized that the Court took such a long time to deliver the verdict and allowed, in the cases of Karnataka and Meghalaya, the illegality to be perpetuated and ultimately deprive the citizens of those states to be governed by their chosen representative[37]. Still, the judgement delivered by the Supreme Court put a check on arbitrary dismissal of state governments in future and strengthen the federal structure of Indian polity which had hitherto been damaged on several occasions particularly when different political parties were in power at the Centre and the State.

Further in this Case, Supreme Court held that, ‘Secularism is one of the basic features of the Constitution’. Secularism is a positive concept of equal treatment of all religions. Any State Government which pursues non-secular policies or non-secular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. Thus, Supreme Court has declared ‘secularism’ as one of the grounds for invoking Article 356.

After the decline of Nehru’s Congress Party and its hold on the central government in India, and the rise of the Bharatiya Janata Party (BJP), the future of secularism in India also seems to be in doubt. The events in Gujarat during which thousands, of which large majority were Muslims, died as a result of communal carnage is a pointer. The BJP government in power at the time of the violence was headed by Narendra Modi who did nothing to control the violence.[38] In fact, Narendra Modi was alleged to have employed non-secular policies giving rise to ‘Gujarat Pogrom’ of mass killings against Minority Muslim population. Following the violence, the legislature of the state was dissolved. But, now BJP has nominated Narendra Modi as Prime Ministerial candidate and if he be elected so, the question arises, what remedy the Constitution of India will provide when non-secular policies will be promoted at Centre?. In 1971, the same question was apprehended by Mr. Atal Bihari Vajpayee in ‘Dogma and Dilemma’[39] as:

“The political instability in the States, as its most malignant, has a constitutional cure – imposition of President’s Rule. But there is no constitutional cure for political instability at the Centre. The only remedy is political readiness of all parties to subscribe to coalition politics.”

 

Two possible remedies may be resorted to in such a contingency, one Judicial Review and the other being Public Opinion. The susceptibility of such action to judicial review is beyond dispute. In the exercise of the power of Judicial Review, the Court is entitled to examine such action on the ground of mala fides or based on wholly irrelevant or extraneous considerations. In a democracy, the government operates according to the consent of people and it is the leader’s obligation to attend to public opinion. The public opinion can have at least, two effects on the governance. Firstly, public opinion tends to create major shifts in the government. In the recent elections in Delhi, the outcome reflects the change in the national mood or opinion. The AAP (Aam Aadmi Party) coming so close to power in a State of such immense political significance would have been unthinkable. A new-born with almost no resources, what the party did offer instead was idealism in dollops and a promise to deliver clean, corruption free governance[40]. The message caught the imagination of public (Voters) cutting across social backgrounds. Secondly, the population at national level is more heterogeneous than at state level. To motivate public opinion for all wrongs and sins is extremely difficult at national level.

 

Conclusion and Suggestion:

The Indian Constitution embodies the principle of federalism for the governance of the country but fails to adhere to the pious contents of the federalism.Federalism in India has a strong bias towards the Centre and the Constitution of India does undoubtedly contain provisions which have tendencies to disturb the equilibrium. Maintaining a fine balance of power is need of an hour. Many efforts at national as well as regional levels have been made to attain a fine balance within the centre-state relations. The time and again, judicial intervention by the Supreme Court, appointment of Commissions like the Rajamannar Commission (1969), the Sarkaria Commission (1988), the National Commission to Review the Working of the Constitution (2002), the Commission on Centre-State Relations (2007) have contributed a lot to address the problem of ‘abuse of Article 356’. Indeed, the above developments are very salutary and will go a long way in minimizing Centre’s frequent onslaught on the State’s, who as rightly pointed out ‘are neither satellites nor agents of Centre’. Although the abuse of Article 356 has been controlled to a great extent but still State’s perceive it as a ‘threat’ in the hands of Centre. Besides the above mentioned checks, following immediate steps need to be taken:

  1. Accommodate the regional parties sentiments and aspiration within Indian Polity;
  2. Constitutionally acknowledge the reality that exists on the ground;
  3. Identify and remove the hurdles in the smooth and efficient functioning of Center-State relations; and
  4. More importantly, modify or re-assert the whole set of Center-State relations under the Constitution.

Further, federal system is not an immutable one but needs to undergo re-examination at intervals, the aim being to re-adjust or at any rate, re-confirm the equilibrium in the light of emerging situational compulsions. Where this re-examination is delayed or avoided, clashes inevitably arise and inter-governmental harmony comes under strain. The aspirations of the State must be accommodated rather than keeping them coercively intact. Non-accommodation of aspirations may develop within a State sense of vulnerability and alienation. To avoid the consequences of cessation, national aspirations must accommodate and adjust the regional aspirations. Lastly, scrapping down Article 356 is not going to serve any purpose rather, such removal will lead to majoritarianism at State level.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Brain Hocking, ed., Foreign Relations and Federal States, (London: Leicester University Press, 1993); and Jans J. Michelmann and Panyotis, Federalism and International Relations – The Role of Subnational Units, (Oxford: Clarendon Press, 1990).

[2] U.C. Jain and Jeevan Nair, Encyclopedia of Indian Government and Politics, vol. 7, Centre-State Relations, (Jaipur: Pointer Publishers, 2000); and Robert L. Hardgrave, Jr. And Stanley A. Kochanek, India – Government and Politics in a Developing Nation, 4th ed., (San Diego: Harcourt Brace, Jovanovich, 1986), p.44.

[3] Surendra Singh and Satish Mishra, Federalism in India: time for a Relook?, Realpolitik, vol. 8 Issue 10, May, 2013.

[4] M.G Khan, Coalition Government and Federal System in India, The Indian Journal of Political Science, vol. 64, no. 3-4, July-December, 2003.

[5] Jain and Nair, Encyclopedia of Indian Government and Politics, p. 48.

[6] For the text of the Forty-second Amendment, see Constitution Amendment in India, Lok Sabha Secretariat, pp. 290-320.

[7] Lok Sabha Debates, Fifth Series, vol. 65, no.3, cols. 141-2. Speech reprinted under the title ‘Parliament Has Unfettered Right’ in Indhira Gandhi, Selected Speeches and Writings, vol. 3. Pp. 283-91.

[8] Granville Austin, Working A Democratic Constitution – A History of the Indian Experience, 11th edn., 2013 (Oxford University Press), p. 295.

[9] Ibid, p. 395.

[10] Ibid, p. 400.

[11] We Need Article 356, But as Last Resort, The Times of India, published on 19th May, 2003.

[12] T.K. Tope, Dr. Ambedkar and Article 356 of the Constitution, (1993) 4 SCC (Jour) 1.

[13] C.A.D., Vol. IX, p. 177. This warning as cautioned by Dr. Ambedkar was not resorted to even in a single instance.

[14] See, Article 159 of the Constitution of India.

[15] Prof. M.P Jain, Indian Constitutional Law, Fifth Edition (2008) at p. 687.

[16] M.N Buch, Governors as Centre’s Agent, The New India Express, published on 3rd August, 2013.

[17] The Committee consisted of three members i,e P.V Rajamannar (Chairman), A.L. Mudaliar, and P. Chandra Reddy.

[18] This memorandum adopted the position that the Constitution itself had been altered, such as the 42nd Amendment to the Constitution, which allowed transfer of education from the State List to the Concurrent List to the exclusive benefit of Centre.

[19] The Sarkaria Commission Report (1987).

[20] Report of the CCSR, Vol. I (Evolution of the Center-State Relations in India), 2010.

[21] Pandit Nehru kept the Punjab Assembly in suspension for 9 months and 28 days to help the state Congress government get its act together.

[22] Breakdown of Law & Oder due to Jai Andhra Agitation, In P.V Narasimha Rao’s Tenure.

[23] Government dismissed in spite of Karunanidhi enjoying majority support in Assembly.

[24] Discontent within Janata Party Government and Corruption charges led to dismissal of government and dissolution of Assembly.

[25] Loss of majority.

[26] Charan Singh Ministry supported by Congress collapsed following split in Congress Party.

[27] See, A Consultation Paper on Article 356 of the Constitution, National Commission to Review the Working of the Constitution (May 11, 2001).

[28] [1994] 2 SCR 644: AIR 1994 SC 1918: (1994) 3 SCC 1.

[29] Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, PUNE, INDIA, Sept. 21, 1996.

[30] Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head.

[31] The existence of material – which may comprise of or include the report(s) of the Governor – is a pre-condition.

[32] Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before.

[33] There is no room for holding that the President can take over some of the functions and powers of the State Government while keeping the State Government in office. There cannot be two Governments in one sphere.

[34] Since the Proclamation lapses— and is not retrospectively invalidated – the acts done, orders made and laws passed during the period of two months do not become illegal or void. They are, however, subject to review, repeal or modification by the Government/Legislative Assembly or other competent authority.

[35] The deletion of clause (5) [which was introduced by the 38th (Amendment) Act] by the 44th (Amendment) Act, removes the cloud on the reviewability of the action.

[36] K. Jayasudha Reddy and Joy V. Joseph, Executive Discretion and Article 356 of the Constitution of India: A comparative critique, Electronic Journal of Comparative Law, Vol. 8.1 (March, 2004).

[37] Prasad, R.J Rajender, ‘Bommai Verdict has Checked Misuse of Article 356’ Frontline, Vol. 15, No. 14, July-August, 1998.

[38] T.N. Srinivasan, The Future of Secularism, 3rd Impression 2011, (Oxford University Press) at. p.5.

[39] A.B. Vajpayee, ‘Dogma and Dilemma’ published in Coalition Politics in India, (1971), pp. 70-72 by N.S. Sahni.

[40] Smita Gupta and Vidya Subrahmaniam, A Change in National Mood, The Hindu, published on 9th December, 2013.

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