The ball is in the Supreme Court’s court now. The Uttarakhand High Court on Thursday set aside the President’s rule imposed in the state last month. The High Court, while setting aside the order, reinstated Harish Rawat as the chief minister and ordered him to take a trust vote next Friday. However, on Friday, the Supreme Court has stayed the High Court order till the next hearing, which will take place on 27 April.
Now, the Supreme Court of India; the final arbiter of the constitutional maters will decide the case. While doing so, it will definitely look back to the point when a judgement by their predecessors changed the course of federal politics in the country. While pronouncing its judgement in S R Bommai case, the constitutional bench of the highest court made the arbitrary use of Article 356 of the Constitution very difficult.
Now more than two decades after the Bommai case, apex court will once again deliberate upon the use and abuse of the Article 356.
After the imposition of President's rule, Finance Minister Arun Jaitley had remarked that Uttarakhand is the “textbook example of a breakdown of governance."
Responding to some questions on Article 356, noted constitutional expert Upendra Baxi while speaking to Firstpost earlier this month had remarked, “I don’t have access to paper-books and details of the arguments made in the court, but I am intrigued by what Mr Jaitley is reported to have said”.
“Can there be a situation that the lack of confidence in the ruling party is so manifest that no floor test is necessary, and whether the present case falls in this category, are questions that are now being raised”, added Baxi
Discussing whether there can be a case where a floor test is not required Baxi had added,” If the question now is that did the Bommai case lay down the requirement of a floor test in such cases, I will say yes. Did the Bommai case ask for floor test in all cases--it is for the court to decide; to see if there can be any exception. From an outside view, the politics in both cases (Arunachal Pradesh and Uttarakhand) is very murky.
“In the Bommai case, it was made very clear that there should be a floor test. Nobody can say that the Supreme Court judgment was unreasoned. If the question is whether Uttarakhand warranted that exception, my answer would be that I don’t see any exceptional situation. I have high respect for Mr Jaitley’s constitutional acumen; he might have seen something by way of support as Constitutional lawyer and party person. I am not concerned with any party's political considerations. Let us say that if the matter goes to the Supreme Court, then the parties have to justify/de-justify the nature of the claimed exception”.
Now with the Supreme Court examining the merits of the case, the Centre, which was reprimanded by the High Court for its “blatant falsehood” and use of “extraneous” and “irrelevant” arguments will have tough time defending itself in the apex court.
Professor Baxi had made an important point which resonates with an observation made by the bench in Uttarakhand High Court. Baxi had remarked,“From the legal perspective, one question is whether the state budget was supposed to be passed, or that if it could not be passed, is a floor test the best way ahead?”
The High Court, as reported by The Indian Express, had observed, “It may be true that ordinarily when Money Bill is defeated, government tenders resignation. What happens if it doesn’t resign? Can it be likened to government having fallen, as contended by the Central government?”
Talking about the history of Article 356 and the Bommai case Baxi said, “Dr Ambedkar insisted that it is a dead provision which should be seldom used, like we say that capital punishment should be awarded in rarest of the rare cases. But the history of the misuse of the Article is evident. Till the Bommai case, there was extraordinary use of this provision. The Bommai case had a number of cases of President’s Rule proclamations to consider. The judges gave their verdict according to merit of each case. But in general, it was held that President’s Rule should become rare. While there is no manageable judicial standard to scrutinise the satisfaction of the President, the fact is that it should not be ultra vires”.
But the dead letter has been abused time and again, giving it a fresh lease of life. That in turn has transformed into big political storms, with the judiciary playing the final arbitrator between the warring state and the Centre. The Centre’s decision to suspend the government in Uttarakhand will now be judged by the apex court, in a case which will surely have wide ranging ramifications on Centre-state relations.
While explaining how this case was a matter of great discussion during the constituent assembly debate, Baxi said, “During the Constituent assembly debate, Dr B R Ambedkar referred to the article as a ‘dead letter’. He said that "I share the sentiments that such Articles will never be called into operation and they would remain a dead letter”. This was something which was quoted in the Bommai judgment too. And why did he call it as a dead letter? It was because he felt that it will be used in rare cases. It is not a normal tool of governance. The Sarkaria commission which laid down several guidelines and grounds which should be considered while imposing the president’s rule also echoed the same views”.