Powers of President to impose President Rule

Article 356 of the Constitution of India deals with the imposition of President’s Rule in the States, when the Constitutional machinery in that very State has lapsed or failed. When it is imposed, the State Legislature ceases to function as it is either kept under suspended animation or is dissolved. We observe that the provision is included in the chapter of ‘Emergency Provisions’ under the Constitution, but it is not at all contingent upon any emergency of the nature referred to in Article 352[1]. This Article is one of the most important aspects of Central-State relations in India, and is undoubtedly a common scenario in our country these days with President’s Rule imposed in Arunachal Pradesh in January 2016 followed by Uttarakhand and being suspected so by Himachal Pradesh government as well. Ironically, the governments in these States are not the ones enjoying majority at the Centre right now. However, these are the twist and turns Indian politics has always been fond of, especially, at the times when Central government enjoys a powerful majority and aims to conquer the whole country. But, I would keep aside our readers from this crisp of twist and turns and forthrightly, discuss the legal aspects of this provision, how it should be used and how it has been misused and so on.

The powers of Centre under this Article are rigorously controlled by the Constitution. A proclamation under Article 356 is issued on the recommendation of the Governor of the concerned State or otherwise and is satisfying to the President that the government of the State cannot be carried out in accordance with the provisions of the Constitution. The glaring point obviously is that the President is just the name as he acts on aid and advice of the council of Ministers that is, the government at the centre and thus, the satisfaction is not his personal satisfaction.[2] The President’s satisfaction being subjective cannot be challenged in a Court of law on the ground of correctness or adequacy of materials or grounds.[3] Such proclamation once issued can be revoked or varied by a subsequent Proclamation. The words “or otherwise” very clearly are indicative of the fact that it is not necessary that the President will act only on the report of the Governor, but he can rely on other sources as well like Union agencies or any Union Minister and thus, the provision is of very wide import and it is often seen that such wide and unrestricted rights have been misused.

Usually, the President’s rule is imposed when the State government loses its majority in the State Legislature or its coalition partners or supporting parties withdraw their support which recently happened in Uttarakhand when certain MLAs of congress party rose in rebellion against their own party, and in Arunachal Pradesh when the Governor of the State recommended so because of the disturbance in Legislature after the split of 21 of its MLAs to BJP. Also, there have been certain instances of President’s rule when no party post polls is able to gain majority and is unable to get support of other parties or their allies. Other instances like that of resignation by Arvind Kejriwal for his party could not pass Jan Lokpal Bill then as the party did not enjoy absolute majority also led to imposition of President’s rule, Mrs. Indira Gandhi too holds the record of issuing maximum number (35) of proclamations during her regime of 14 years.

The architects of our Constitution could never imagine a situation like this as Dr. Ambedkar had expected that “such articles will never be called into operation and that they would remain a dead letter.”[4] It was supposed to be an exceptional provision to be applied only in the last resort but, unfortunately it is being used today to refuge the political motives. However, the Judiciary has tried its level best to check this political menace.

The whole Article and specifically, Clause (1) has been considered by the Supreme Court very wisely in State of Rajasthan v. UOI[5] in 1977 which was a seven judges Bench. The main hurdle before the bench was the bar imposed on judicial review on old clause (5) of the provision which was later on amended by 44th Amendment to the Constitution in 1978.  In this case, the question clearly was if the courts should interfere with any kind of arbitrary use of this Article by the Central government which could very likely disturb the fine balance of the Federal Structure of the country. C.J Beg opined that the Court must not interfere in this matter at all. However, rest of the 6 judges formed a majority opinion which differed from this. It was observed by the Court that:-

“…we have no doubt at all that merely because the ruling party in a State suffers defeat in the elections to the Lok Sabha…that itself can be no ground for saying that the Government of the State cannot be carried on in accordance with the provisions of the Constitution.” This in my opinion too would be nothing but, immoral politics.

It was held that the Union Government would wait for such an unfortunate situation when the State Government is most likely to be faced with popular resistance so as to make it impossible for the ruling party to carry on the government of the State in accordance with the Constitution instead of resorting to the drastic remedy of this provision in the anticipation of the occurrence of malady.However, it was further held that satisfaction of President under this is ‘subjective’ and can’t be tested with reference to any objective tests and suit against the President proclamation was unanimously dismissed.

Now, after this judgment when the bar was lifted by the Judiciary on judicial review of any indiscriminate action by the Centre encouraged the Apex Court to become proactive and take a bolder step which is evident from the 9-judge bench decision in S.R. Bommai v. UOI[6].

The principle of Article 356 has been set out in the said decision in the following words: 

The crucial expressions in Art.356 (1), namely, if the President, “on the receipt of report from the Governor of a State or otherwise” “is satisfied” that “the situation has arisen in which the government of the State cannot be carried on” “in accordance with the provisions of the Constitution” were examined. It held that the President’s satisfaction has to be based on objective material. That material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources. … Once such material is shown to exist, the satisfaction of the President based on the material is not open to question.”

“….However, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the government of the State cannot be carried on in accordance with the provisions of the Constitution, the proclamation issued is open to challenge.” (opinion of P.B. Sawant J.). The Court appreciatively accepted the recommendations of Sarkaria Commission in this case. Thus, the power under this Article is a condition power and not an absolute power today.

The Court in this case overruled the Rajasthan case by holding that though Article 74(2) bars the Court to question what advice is rendered to President by the council of Ministers but, it can definitely ask the Union Council of Ministers to reveal the material upon which they formed their advice to the President.

The NCRWC[7] Report of 2001 after examining the position of this important provision has very carefully suggested that we need to maintain co-operative federalism in the country in order to ensure good governance in the country and has suggested certain amendments like ‘whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly and nowhere else. If necessary, the Central Government should take necessary steps to enable the Legislative Assembly to meet and freely transact its business. The Governors should not be allowed to dismiss the Ministry so long as it enjoys the confidence of the House. Only where a Chief Minister of the Ministry refuses to resign after his Ministry is defeated on a motion of no-confidence, should the Governor dismiss the State Government’, ‘Before issuing the proclamation under clause (1), the President/the Central Government should indicate to the State Government the matters wherein the State Government is not acting in accordance with the provisions of the Constitution and give it a reasonable opportunity of redressing the situation – unless the situation is such that following the above course would not be in the interest of security of State or defence of the country’ and, ‘if so necessary, the State Legislature cannot be dissolved by the proclamation, it can only be kept under suspended animation.’

However, if we follow-up the recent controversies, we see that the hunger of power has fallen so heavily on the Union that it barely wants to pay heed to the laws of the land laid down by the Apex Court but, all we can do is sit back and watch how the Courts of law take their toll and check this abuse of the Constitution and that is the essence of democracy indeed, as soon as one pillar sickens, the other is ready with the anti-dote.​

End notes

  • [1] AIR 1994 SC 1918
  • [2] National Commission to review the Working of the Constitution, http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm
  • [3] AIR 1977 SC 1361
  • [4] IX C.A.D., 177
  • [5] Article 74
  • [6] State of Rajasthan v, Union of India, AIR 1997 SC 1361
  • [7] 352. Proclamation of Emergency

 

raj kumar makkad 
on 26 September 2016
Published in Constitutional Law
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