A nine-judge bench of the Supreme Court in Bommai (1994) observed that the powers under Article 356 are extraordinary, must be used “sparingly”, and should never be used for political gain to the party in power at the Centre. No Central government has paid heed to these words of wisdom and no court has so far held any government accountable for violating the law laid down by the apex court and revived a dismissed state government. No court has ever restored status quo ante to revive an assembly. The supreme court of Pakistan had once reinstated a dismissed Nawaz Sharif government, and our apex court had relied on this verdict in the Bommai case. On April 6, will the Uttarakhand High Court uphold constitutionalism by revoking the imposition of Article 356 and ordering a floor test?
The order of Justice U.C. Dhyani of the Uttarakhand HC lacked clarity on several counts: It ordered a floor test without quashing the presidential invocation under Article 356 and permitted even disqualified legislators to participate in voting. Still, one needs to appreciate the courage of the judge. The attorney general’s assertion before the division bench in Nainital opposing the impugned order that courts do not have the power to examine presidential proclamations is not correct. Though the doctrine of “political thicket” demands that courts stay out of purely political questions, the law laid down in the mass dissolution case in 1977 is absolutely clear that if exercise of power under Article 356 was “mala fide”, courts can intervene. In this respect, the real intent of the Central government both in Arunachal Pradesh as well as Uttarakhand is clear.
The unusual power under Article 356 in a multi-party polity like India can easily be used against opposition-run state governments. Indira Gandhi used it even against Congress governments. Is it not strange that no liberal democratic constitution except that of Pakistan has such a provision? In fact, our freedom fighters had protested so much against an analogous provision in the Government of India Act that the colonial government was compelled not to implement it. But after Independence, we ourselves included it in the new Constitution when B.R. Ambedkar gave an assurance that it would remain a dead letter.
The president can exercise his power under Article 356 “either on the report of the governor or otherwise”. Some members of the Constituent Assembly vehemently opposed it. H.V. Kamath argued, “let us wind up this assembly and go home”. Shibban Lal Saksena said, “we are reducing the autonomy of the states to a farce”. Naziruddin Ahmad said that “I think we are drifting, perhaps unconsciously, towards a dictatorship”.
President’s rule can be imposed if there is a so-called breakdown of the constitutional machinery in the state and if the government of the state cannot be carried on in accordance with the Constitution. What does this mean? Article 365 says that if any advice is given by the Centre, and the state government does not comply with it, it shall be deemed that there is a breakdown of the constitutional machinery in the state. If this is not the hegemony of the Centre, then what is?
Whatever the Congress has done, the BJP is trying to outdo it. The first “opposition government” at the Centre, that is, the Janata government, dismissed as many as nine Congress governments. These dismissals were not done on the basis of governors’ reports. Indira Gandhi gave a befitting “reply” by dismissing nine opposition governments on returning to power in 1980. Similarly, the dismissal of BJP governments after the demolition of the Babri Masjid was an assault on democracy, though the Supreme Court had upheld it in the name of “secularism”.
As a true statesman, Prime Minister Narendra Modi must rise above petty politics and demonstrate his commitment to what he himself promised: Cooperative federalism. Let people punish inefficient and immoral opposition governments at election time, or edge them out of office by defeating them in confidence motions.