Constituent Assembly debate on 4 August, 1949
Pandit Hirday Nath Kunzru (United Provinces: General): May I ask my honourable friend to make one point clear? Is it the purpose of Articles 278 and 278A (now 356 and 357) to enable the Central Government to intervene in Provincial affairs for the sake of good government of the Provinces?
Dr. Ambedkar: No, No. The Centre is not given that authority.
Pandit Hirday Nath Kunzru: Or only when there is such mis-government in the Province to endanger public peace?
Dr. Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional governance of the Provinces. Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point... I share the sentiments expressed by my honourable friend, Mr Gupta, yesterday that the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter.
The apprehensions regarding the probable misuse of Article 356 (which empowers the Union to take over the government of the state on the recommendation of the governor or otherwise) can be visibly gauged from the above Constituent Assembly debate — the apprehension of which to a great extent has come to fruition with the abject misuse of the provision on numerous occasions, since the enactment of the Constitution.
Some years ago at a meeting of the inter-state council at Srinagar, a consensus was built to incorporate the rules laid down in the landmark SR Bommai judgment into the Constitution by an amendment. The idea, however, could not take a concrete shape. Had the idea fructified, what is happening in Uttarakhand at present, would not even have been a remote possibility.
The dismissal of nine Congress governments and their respective Assemblies in 1977 followed by the dismissal of the same number of state governments led by the Janata Party and other Opposition parties by the Indira Gandhi government in 1980 posed serious questions about the working of the federal structure of the Indian State. The arbitrary use of Article 356 in 1977 and 1980 led to the 1983 appointment of the Sarkaria Commision on Centre-state relations which though did not recommended the abolition of Article 356, but called for the restrained use of the provision.
However, it was in the SR Bommai case in 1994 that the apex court made the indiscriminate and arbitrary use of the Article 356 almost impossible by laying down certain guidelines to be taken into account before invoking the article. But time and again, the principles laid down in the landmark judgment have been openly flouted, the most recent being the imposition of President’s Rule in Uttarakhand.
Among various directives issued in the Bommai case, the two that had the most far-reaching ramifications were that it allowed judicial review of the decision of the imposition of the President’s Rule and made it imperative that the majority enjoyed by the council of ministers be tested on the floor of the House — which was not followed in Uttarakhand and in many cases in the past.
Now with the Uttarakhand High Court on Tuesday ordering for a floor test in the Assembly to determine which party enjoys a majority, the actual process as directed by the apex court in the Bommai case is expected to be followed. The high court on Tuesday, while ordering the floor test, said that the results of the floor test should not be declared in the Assembly and instead, should be presented before it in a sealed envelope.
Constitutional expert professor Upendra Baxi while speaking to Firstpost said, “After the SR Bommai case, President's Rule became very rare as the landmark judgment laid down some basic structural discipline. Before this, President's Rule was allowed on any grounds with the court not entering that area. In that sense, in the current case, the affected party has gone to the court — although I am not sure on what ground, but I think they have moved the court on the grounds of the Bommai case. We will know soon”.
Senior advocate, Supreme Court of India Indira Jaising, while commenting upon the Uttarakhand fiasco, said, “The issue is the misuse of majoritarian rule.Having the numbers is Parliament gives the government the confidence to do what they wish. No one outside the House can sit in judgment on the proceedings of the House as the government has purported to do. The president has been misled.”
She added, “The matter is in court and a decision will soon be rendered. The lessons of Arunachal Pradesh have not been learnt. In the final analysis, the role of the courts has become very important. The responsibility of confining the government to its legitimate Rome has fallen on their shoulders. They must perform this task without fear or favour.”
Violating a host of norms enunciated in the Bommai case — just a day before the trust vote in the Uttarakhand legislative Assembly was to be taken and Chief Minister Harish Rawat was to prove majority support for his government — the Centre dismissed the Congress government and imposed President's Rule citing a breakdown of governance on 27 March.