Toppling governments: Higher judiciary must show that it is willing to uphold the law, no matter the cost

Part XVIII of the Constitution of India containing provisions relating to “Emergency Powers” of the Central Government was meant to be little used, if at all. The emergency powers relate not just to a national emergency (imposed in 1962, 1971 and most controversially, in 1975 by the Congress Government) but also to the imposition of 'President’s Rule' over a State Government under Article 356, whether for failure of constitutional machinery or for financial reasons. The constitutional intent that these powers would be used sparingly and it would be best in fact, if they were not used at all can be seen in that Dr Ambedkar, in a discussion in the Constituent Assembly, hopes that this provision would be a “dead letter” and never be called into operation.

It is a matter of fact of course that Dr Ambedkar’s expectations in this respect have been belied by the long history of the use and abuse of Article 356 of the Constitution. There have been 126 instances (including the most recent invocation against Uttarakhand and Arunacha Pradesh) of President’s Rule being imposed in India since the coming into force of the Constitution - an average of a little less than twice a year.  This is not to say that every invocation of Article 356 is an automatic abuse of or contrary to the spirit of the Constitution. There are broadly two kinds of cases where the Central Government may justifiably invoke Article 356 powers - lack of majority in the Assembly and constitutional breakdown.

Lack of Majority

There are two situations where lack of majority can lead to imposition of President’s Rule. When coalition governments lose majority because of a coalition partner withdrawing support and no other party is in a position to step into the breach, imposition of President’s Rule is a temporary measure to ensure governance of the State is carried on according to the Constitution as happened in Jharkhand in 2013. It can also be legitimately imposed when no one party or alliance is in a position to form the Government immediately after elections, as happened in Jammu and Kashmir in 2015. (Since Jammu and Kashmir has its own Constitution, the provision similar to Article 356 is Section 92)

Representational image. IBNLive

Representational image. IBNLive

The scope for misuse here lies in the fact that the trigger for the imposition of Article 356 is the report of the Governor of the State sent to the President recommending President’s Rule. With the Governor’s office having become subservient to the Centre and a partisan centre of power in States (despite the Supreme Court’s efforts to change that), a ruling party at the Centre would get its Governors to send in favourable reports seeking the imposition of President’s Rule in opposition ruled States. Even if a State Government enjoyed full majority in the Legislative Assembly, there have been multiple instances where such State Governments have been put under President’s Rule on the pure whim of the Centre. The en-masse imposition of President’s Rule in 1977 by the Janata Party Government and later in 1980 by the Congress Government (in an obvious tit-for-tat move) are two such examples of the misuse of this power.

The Supreme Court’s judgment in SR Bommai versus Union of India has put an end to the Governor’s subjectivity in this matter and mandated that the existence or otherwise of a majority has to be determined on the basis of a “floor test” in the Legislative Assembly and not on the basis of the Governor’s own opinion. In doing so, a nine-judge bench of the Supreme Court overturned an earlier ruling which had held that the Supreme Court had no power to review the Governor’s report to the Centre in imposing President’s Rule on a State. The Supreme Court reiterated this principle of law in the Bihar Assembly dissolution case in 2005, where it set aside the imposition of President’s Rule in Bihar on the ground that the Governor’s Report was based on his own subjective assessment of the majority being cobbled together by “unethical or illegal means”.

Constitutional breakdown

Strictly speaking the absence of a majority is also a kind of constitutional breakdown, but the key difference between cases where President’s Rule is imposed for the lack of majority and for constitutional breakdown is the presence of objective material in the former and the necessity of a subjective opinion in the latter. Whereas it is possible to objectively determine (as the Supreme Court has laid out) whether or not a Government enjoys the majority in the House, determining whether or not there’s a constitutional breakdown involves some amount of subjectivity.

The Supreme Court’s judgment in the Bommai case also dealt with the cases of constitutional breakdown in the context of the Governments of Himachal Pradesh, Madhya Pradesh and Rajasthan which had been dismissed for the reason that they were aiding kar sevaks in the Babri Masjid demolition. The Supreme Court, noting that secularism was one of the basic features of the Constitution, upheld the dismissal of these Governments on the ground that the Centre was entitled to dismiss such Governments which had actively and consciously gone against the basic principles of Constitutional rule.

It must be noted here that the Supreme Court did not leave this ground for imposition of President’s Rule entirely to the subjective determination of the Governor and the Central Government. The report of the Governor alleging breakdown of constitutional machinery has to be backed by material relevant to the recommendation of Presidential Rule. Whether or not the material is relevant will also be determined by the Supreme Court and if the material is irrelevant or shows no evidence of a constitutional breakdown, proclamation of President’s Rule can be set aside.

In assessing whether or not there has been constitutional breakdown, it is not possible for the Court, or for that matter any agency, to exhaustively determine all the circumstances under which Article 356 invocation would be justified. The argument that the Supreme Court’s unwillingness to clarify the grounds on which Article 356 may be invoked is a cause of concern overlooks the fact it is the Constitution which prescribes one and only one ground for the invocation of Article 356, and Supreme Court’s interpretive role (and judicial imagination) cannot be stretched to compel it to give an exhaustive expansion of this one ground in all circumstances possible. What the Supreme Court has done is to clarify the procedure - an objective floor test and existence of relevant material - that ensures that the Constitutional norms are followed by the Centre in trying to impose President’s Rule in a given State.

The rise of the coalition era of politics in the 1990s at the Centre and the Supreme Court’s judgment in the Bommai case have long been held to be factors in the diminishing abuse of Article 356 since its inglorious heyday in the 70s and 80s. The controversial imposition of President’s Rule in Arunachal Pradesh and Uttarakhand, both efforts to topple sitting Congress Governments and install a BJP Government in their stead, has brought the topic of Article 356 into public debate once again. Both the cases are now in Court - Arunachal Pradesh’s case having been heard by the Supreme Court and judgment awaited, and Uttarakhand’s case going on in the Uttarakhand High Court. Having laid down the law in fairly clear terms in the Bommai case, it is now up to the higher judiciary to show that it is willing to uphold the law, no matter the cost.

The author is a senior resident fellow at the Vidhi Centre for Legal Policy

Updated Date: Apr 07, 2016 14:54 PM

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