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Article 356: ‘Sow a wind, reap whirlwind’

A legal battle looms over the dismissal of the Uttarakhand govt. This is what Supreme Court’s Bommai judgment said on the use and abuse of Art. 356, the federal structure, roles of President and Governor.

Written by Utkarsh Anand |
March 29, 2016 1:31:58 am
The Supreme Court judgment asked  President to ensure that Art. 356 is not used for political purposes. The Supreme Court judgment asked President to ensure that Art. 356 is not used for political purposes.

‘Awesome’ is not a word usually found in a Supreme Court judgment. But when a nine-judge Constitution Bench interpreted the law on imposition of President’s Rule, it described it as an “awesome power indeed”. The judgment in S R Bommai vs Union of India, delivered in March 1994, construed the scope of Article 356 of the Constitution, which allows for President’s Rule in states. It laid down stringent conditions for valid exercise of the power under Art. 356, while emphasising upon the federal structure and roles of the President and Governor.

With dismissed Chief Minister Harish Rawat moving the High Court on Monday, the legality and constitutionality of the Centre’s decision to impose President’s Rule in Uttarakhand is set to face the test of the Bommai conditions.

In April 1989, Karnataka Chief Minister S R Bommai requested Governor P Ventakasubbiah for an opportunity to prove his majority in the Assembly as the leader of the Janata Dal Legislature Party. It was denied, and Bommai’s government was dismissed. Ultimately, the matter reached the Supreme Court.

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Judicial review
Of the nine judges on the Supreme Court Bench that heard the matter, six authored separate judgments, writing on various aspects of the proclamation. The first striking feature of the judgment was the unequivocal statement of law that the use of Art. 356 was amenable to judicial review.

Justice P B Sawant, writing for himself and Justice Kuldip Singh, held democracy and federalism to be parts of the basic structure of the Constitution, and said any interpretation of Art. 356 must help to preserve, and not subvert, that fabric. “The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly… Such scrutiny will also be within the judicially discoverable and manageable standards,” they ruled.

The judges rejected the argument that the President had unrestricted power to issue proclamation under Art. 356: “If… pluralist democracy and the unity and integrity of the country are to be preserved, judiciary… is the only institution which can act as the saviour of the system and of the nation.”

Justice K Ramaswamy said that “if a legal question camouflaged by political thicket has arisen, the power and the doors of constitutional court are not closed, nor can they be prohibited to enter in the political field under the garb of political thicket in particular, when the Constitution expressly has entrusted the duty to it”.

‘Very sparingly’
Art. 356, the judgment said, should be used “very sparingly”, only when the President is fully satisfied that a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution. “…Frequent use of this power (is) likely to disturb the constitutional balance… If the Proclamation is freely made, the Chief Minister of every state who has to discharge his constitutional functions will be in perpetual fear of the axe… falling on him,” Justice S R Pandian said.

Justices Sawant and Singh asserted that any situation “short of (total constitutional breakdown) does not empower the issuance of the proclamation”. The word ‘cannot’ [as quoted in the paragraph above] “emphatically connotes a situation of impasse”, the judges said, “hence situations which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the state would not merit the issuance of the proclamation”.

Justice Ramaswamy cautioned that Art. 356 should never be used for political gain or to get rid of an inconvenient state government. Frequent elections would belie people’s faith in the parliamentary system, he said, and warned that loss of belief in the democratic process would sound the death-knell for the parliamentary system.

Floor test
The Bommai judgment reminded the Governor and President of their roles. Justice Ramaswamy said the Governor, as a constitutional head of the government must, in times of constitutional crisis, bring about sobriety and should, with a high degree of constitutional responsibility, inform the President about the situation in the state.
Justices B P Jeevan Reddy and S C Agrawal ruled that in cases where a government is alleged to have lost majority, a floor test is the valid method of proving majority. The judges said it was the “duty” of the Governor to summon the Assembly and ask the Chief Minister to establish that he enjoyed the confidence of the House. The only time when a floor test can be bypassed, the judges said, was when a free vote was not possible because of “all-pervasive violence”. However, Justice Ramaswamy said that floor test is merely one option that the Governor requires to ponder over before sending his report to the President.

Upon receiving the report, the President must remember that the power under Art. 356 is in fact an obligation cast upon him in the interest of preserving constitutional government in the states, Justices Reddy and Agrawal said. Any misuse or abuse of this power is bound to play “havoc” with the constitutional system, they said.

“It is not a power conceived to preserve or promote the interests of the political party in power at the Centre… nor is it supposed to be a weapon with which to strike your political opponent… Every misuse of this power has its consequences which may not be evident immediately but surface in a vicious form a few years later. Sow a wind and you will reap the whirlwind…,” they said.

Justices Sawant and Kuldip Singh also observed that the President should resort to all other measures, including issuance of a warning to the Chief Minister, to try to restore the constitutional machinery in the state before invoking Art. 356.

Corrective steps
The ruling, by majority, held that the Assembly must not be dissolved until both Houses of Parliament have taken a decision on the proclamation. The Bommai case also broke new ground as it ruled that despite dissolution of the Assembly and dismissal of the state government, if a proclamation is struck down on the ground of being arbitrary, the government will be restored.

When the proclamation is challenged by making out a prima facie case with regard to its invalidity, the apex court said, the burden would be on the central government to satisfy that there existed sufficient material to impose President’s Rule.

In appropriate cases, the court will have power to restrain the holding of fresh elections to the Assembly as an interim measure to ensure a legal challenge to a proclamation is not defeated through an election.

Bommai prescribed significant constitutional guarantees against the abuse of Art. 356 and for the maintenance of the federal structure. It reminded the President of his “obligation” as the constitutional head to ensure this power is not used to serve political purposes. Therefore, the Centre will have to convince a constitutional court why a floor test was pre-empted despite an initial recommendation by the Governor, and use of Article 356 remained the only resort permissible within the confines of the nine-judge Bench’s verdict.

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utkarsh.anand@expressindia.com

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