By Rakesh Bhatnagar
President Pranab Mukherjee took three long days to satisfy himself that the Modi cabinet decision recommending imposition of the central rule under Article 356 of the Constitution in Arunachal Pradesh, a sensitive border state governed by Congress, was based on legitimate grounds of ‘break down of law and order machinery’ due to the 15 December political upset which allegedly reduced the ruling Congress to minority.
Soon after French president François Hollande departed from Delhi on completing three-day tour on Tuesday evening, President Mukherjee gave his nod to the surprise decision by Union cabinet on Sunday, recommending President’s rule in Arunachal.
That Mukherjee didn’t sign the papers immediately is evident from the fact that he followed strict cautious approach and inquired from Home minister Rajnath Singh as to why there was urgency in making the recommendation for the extreme measure under Article 356 and the circumstances under which the Union government felt that Arunachal was facing ‘break down’ of constitutional and administrative machinery.
It is learnt that Rajnath Singh took pains in explaining all the circumstances that governor had narrated in his letter which recommended the imposition of central rule in Arunachal.
Mukherjee was also believed to be consulting some senior lawyers who have argued in different constitutional matters like the Bommai case, in the Bihar assembly dissolution 10 year ago when the then President Abdul Kalam had signed assent to the Manmohan Singh government decision for the President’s rule in Bihar. Both the then governor of Bihar Buta Singh and Kalam suffered major indignation by a constitution bench of the Supreme Court that declared the imposition of Article 356 as unconstitutional and that the President had acted in a haste without application of mind in according assent to a politically motivated decision taken by Union cabinet.
Mukherjee was armed with the Bihar judgment and that of SR Bommai case verdict holding that strength of a duly elected government could only be tested on the floor of House and not in Raj Bhawan where a Governor resides.
The Modi cabinet acted on a letter by Governor Jyoti Prasad Rajkhowa, a retired IAS officer who had been the Chief Secretary of Assam also. Unlike many governors appointed by the BJP dominated NDA government since May 2014, Rajkhowas isn’t an RSS activist.
A senior lawyer who has long experience of making arguments in several cases emanating from constitutional crises says:“The recommendation for dissolution of assembly can only be made a Governor who has been satisfied that a political party or a group which governs a state has lost the confidence vote in floor test."
But this test wasn’t done in Arunachal. Yet the Governor made the recommendation to Union government for resorting to “extraordinary measure”, he said. “It’s a major lacuna which President Mukherjee may be concerned with," the eminent lawyer opined as he out-rightly declined to accept that he had also been consulted by President on this issue of grave importance.
Mukherjee didn’t want to attract any flak from the Supreme Court that the President acted in haste and without application of mind. The top court is scheduled to hear on Wednesday a writ petition filed by the agitated Congress party challenging the decision taken by Modi government to impose the central rule in a state where it had a “strong government”.
During his decades long political life in which he has held several positions of utmost importance, Mukherjee is known to be well versed with the Constitution and his list of friends includes eminent lawyer such as Soli J Sorabjee, KK Venugopal, PP Rao, Ashok H Desai, TR Andhiyarujina and Harish N Salve among others.
Arunancal was gripped by a crisis on 16 December, after 21 rebel Congress legislators joined hands with 11 BJP and two independent members to "impeach" Speaker Nabam Rebia at a private place. The Congress alleges that Governor Rajkhowa acted as a "BJP agent" and helped its rebel MLAs by calling an assembly session a month ahead of its scheduled time on 15 December.
Chief Minister Nabam Tuki and the 26 lawmakers supporting him in the 60-member assembly boycotted the session calling it illegal and unconstitutional.
A day later, the rebels and opposition legislators met at a hotel to "vote out" the Chief Minister Tuki and elected his replacement.
A no-confidence motion moved by BJP and independent lawmakers was adopted in proceedings chaired by Deputy Speaker T Norbu Thongdok, who is also a Congress rebel. All these parliamentary or legislative proceeding were conducted in a hotel.
The Gauhati High Court first put on hold the decisions taken at the rebel "session". As it dismissed the Speaker's petition later, he moved the Supreme Court, which has referred the case to a Constitution bench.
It may be recalled that on 8 October, 2005, the Supreme Court had declared unconstitutional the 23 May, 2005 Presidential Proclamation dissolving the Bihar Assembly.
The majority judgment by Chief Justice YK Sabharwal, Justices KG Balakrishnan, BN Agrawal, Ashok Bhan and Arijit Pasayat ruled that a proclamation under Article 356 is open to judicial review, but to a very limited extent.
Only when the power is exercised “mala fide” or is based on “wholly extraneous or irrelevant grounds”, the power of judicial review can be exercised.
While declaring imposition of Article 356 in Bihar unconstitutional, judges had held that Governor Buta Singh recommended dissolution on the ground that the majority projected had its foundation on unethical and corrupt means which had been and were being adopted to cobble a majority.
“It has become imperative and necessary that right persons are chosen as Governors if the sanctity of the post as the Head of the Executive of a State is to be maintained”, the top court had recommended.
The principles enshrined in Bommai judgment in 1994 ought to guide Speakers, governors and President and any deviance from them could boomerang on them as had been done with Kalam.
It stipulated that the majority enjoyed by a Council of Ministers shall be tested on the floor of the House.
The Centre should give a “warning” to the state and a time period of one week to reply before resorting to Article 356.
The court cannot question the advice tendered by the council of ministers to the President but it can question the material behind the satisfaction of the President.
Hence, Judicial Review will involve three questions only if there was any relevant material behind the proclamation and was there any mala fide use of power. Third, if there was improper use of Article 356, then the “court will provide remedy”.
Under Article 356(3), it is the limitation on the powers of the President. Hence, the President “shall not take any irreversible action” until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
Imposition of Article 356 could be justified only when there is a breakdown of constitutional machinery and not administrative machinery. This provision “shall be used sparingly by the centre, otherwise it is likely to destroy the constitutional structure between the centre and the states”, the apex court had warned. Even Dr Ambedkar envisaged it to remain a 'dead letter' in the Constitution.