Imposing President's Rule in West Bengal may not be best option for Centre; Article 356 may take more from Modi govt than Mamata

After the Supreme Court directed Kolkata police commissioner Rajeev Kumar to cooperate with the Central Bureau of Investigation (CBI) in the Saradha chit fund scam probes, a buoyant Mamata Banerjee claimed a “moral victory”. The West Bengal chief minister slammed the Narendra Modi government, accusing it of “high-handedness and brutal control” over institutions such as the CBI and the Enforcement Directorate (ED), and said in clear terms that she will not allow divisive politics to thrive. When asked about the Centre’s warning of imposing Article 356, Mamata said, “If you have Article 356, we have Section 144… I will shut you out.” Besides Mamata’s assertion, the statement brings back focus on the President’s Rule, the loopholes in the law and how the Centre should tread very carefully in implementing it in states such as West Bengal. [caption id=“attachment_4677331” align=“alignleft” width=“380”] File image of West Bengal chief minister Mamata Banerjee. PTI[/caption] Though Home Minister Rajnath Singh told the Lok Sabha on Monday that the incident in West Bengal “bordered on the failure of constitutional machinery”, senior officials have reportedly said that the situation was not grave enough to invoke Article 356 of the Constitution. Earlier in the day, Singh called up West Bengal governor Keshari Nath Tripathi to be apprised of the facts of the incident in which a central investigating agency was allegedly “manhandled, detained, intimidated and obstructed". While the Center is closely monitoring the situation, if at all West Bengal is faced with a governmental shut-down, it won’t be the first time. On five different occasions previously, the state has come under President’s Rule. West Bengal ran without an Assembly for over a year from 19 March 1970 to 2 April 1971. Prior to 1971, the state saw a high level of political instability as the administration swapped between a government and President’s Rule every six months to one year. Thereafter, in April 1971, Ajoy Kumar Mukherjee was appointed as the chief minister but, in less than three months, the governmental machinery came crashing down, leaving voters exhausted, and the state in shambles. The inevitable breakdown resulted in a 265-days-long President’s Rule under VV Giri. President’s Rule can be imposed in a state only when the governor certifies that there has been a failure of the constitutional machinery in that state. In the case of SR Bommai versus Union of India, the Supreme Court interpreted this to include the following scenarios also:

• Large-scale breakdown of the law and order or public order situation in the state
• Gross mismanagement of affairs by a state government
• Corruption or abuse of the state government’s powers
• Danger to national integrity or security of the state or for abetting national disintegration or a claim for independent sovereign status
• Subversion of the Constitution while professing to work under the Constitution or creating disunity among people to disintegrate the democratic social fabric

However, according to the apex court and the Sarkaria Commission, President’s Rule is to be used sparingly, and only as the last resort. A state like West Bengal, which has always been a high-octane political ground — leading to churns at the Centre — dislodging the voted leader would only lend her sympathy and possible electoral gains in the upcoming political contest. However, there have also been cases where the provision for President’s rule has been abused to serve the interests of the ruling party at the Centre. In fact, until the Supreme Court laid down specific guidelines for using the power under the said Article, the Central Government has repeatedly used it for dismissing state governments of Opposition parties on “untenable grounds”, The Indian Express reports. The burden of this proclamation, which is subject to judicial review, lies on the Central Government. The Centre has to prove that relevant material existed to justify the issue of such a severe proclamation. It is interesting to note that, after the 42nd Amendment of the Constitution, the state emergency was made immune from judicial review but, later in the 44th Amendment, the legality of President’s rule was allowed to be challenged. Although the father of Indian Constitution, BR Ambedkar had hoped that the power given under the Article would rarely be used and would remain a dead letter, according to The Indian Express’ report, till May 2016, it has been used on no less than 115 occasions. What is also important to note is that Article 355 casts a duty on the Union government to protect the states against internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. Hence, before imposing President’s Rule under Article 356, the Union also has the responsibility to ensure that it had performed its duty, and failed. Given that India is a federal state where the states are equal partners in the governance of the country and elected through a similar democratic electoral process, it is the duty of the Central Government to allow the constituent units to run their governments without undue interference or disruption in their functioning. So far, in all instances of the imposition of President’s Rule, it has been noticed that on most occasions it has been on the basis of the report made by the governor. Which, in a politically charged scenario, may not be best adjudged as impartial. However, the provision also says that the President can take such a decision even “otherwise” (that is even in the absence of the governor’s report). In Rameshwar Prasad versus UOI (Bihar Assembly Dissolution case), it was held that the presidential proclamation dissolving state Assembly in Bihar under Article 356 was unconstitutional on extraneous and irrelevant grounds. The court said that the state governor misled the Centre in recommending dissolution of the state Assembly. However, while sending a report to the Centre, the governor is not supposed to consult the state cabinet and can exercise his or her own discretion. On the contrary, the President has to go by the advice of the Union cabinet and can only seek clarifications from the council of ministers. This was done by R Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the governor. The Supreme Court had also made it clear in its 1994 judgment that the outgoing chief minister must be given an opportunity to prove majority on the floor of the House in the concerned Assembly. Which, in the case of West Bengal, wouldn’t be a difficult deal for Mamata and thus, BJP needs to be wary of the steps it takes to topple the Trinamool Congress (TMC) government. Also, recent experiments to impose President’s Rule in other states including Uttarakhand and Bihar did not go in Centre’s favour and ended up in a loss of face for the ruling party. Therefore, the use of such a tricky card at this stage ahead of the 2019 Lok Sabha election, may very well prove to be a double-edged sword for the Modi government.