When Centre targets statehttps://indianexpress.com/article/opinion/columns/presidents-rule-uttarakhand-emergency-2815788/

When Centre targets state

President’s Rule must be abolished. Uttarakhand developments show why.

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We must accept that defections (called aaya ram-gaya ram) are an evil fraud on the electors and the Constitution. (Illustration: C R Sasikumar)

On May 13, 2016, the Supreme Court took on record the gazette notification that the President’s Rule imposed on March 27 in Uttarakhand has been revoked. On January 25, President’s Rule was imposed in Arunachal Pradesh and revoked on February 19. The strategic similarity is obvious. In both cases, the BJP destabilised the government, inducing defections. In both, the BJP-led government imposed President’s Rule. In Arunachal, the BJP created situational circumstances to defeat Nabam Tuki’s popular government. In Uttarakhand, the Congress retained its government. In both cases, the governors were biased to push the Union government’s agenda. In both cases, the president did not return the proposal for President’s Rule as in Bihar in 1998.

First and foremost, we must accept that defections (called aaya ram-gaya ram) are an evil fraud on the electors and the Constitution. Between 1987-2013, mass defections — of one-third of a party — were permitted. After the 91st amendment (2003), all defection became constitutionally impermissible. The BJP’s Uttarakhand manoeuvres nullify the very amendment which Arun Jaitley of the BJP had enacted. Now the “defector” says, please don’t treat me as a “defector” but as an individual who never left his party. Minister Jaitley should squirm at this subversion of this amendment. But along with Attorney General Mukul Rohatgi, he probably conspired to create these crises. Two clever lawyers having fun with the Constitution as if it was a political toy. A defector is given a new lease of constitutional protection.

President’s Rule has dubious antecedents traceable to British India’s 1935 enactment and misused infamously till 1992. After the Bommai decision (1992), constitutionalists thought the pernicious reign of President’s Rule was over; now we see the BJP reviving it. The term used to impose President’s Rule is the arising of a situation “in which the government of the state cannot be carried on in accordance with the provisions of the Constitution”. This has never been properly interpreted. Can allegations of corruption mean breakdown? Or defection? Or some other deficiency of governance perceived by a different party in power at the Centre? In my view, the only reason for imposing President’s Rule under Article 356 (read with Article 355) can be external aggression and internal disturbance which shakes the foundations of governance altogether as in Punjab (1987-90). Even external and internal disturbances do not require President’s Rule. Article 352 allows emergency for a part of India. In my view, President’s Rule should be abolished. If Union governance can do without President’s Rule, so too the states.

Uttarakhand is a typical example. The single judge in Nainital passed the right order on March 29 for a floor test except that he should have suspended President’s Rule (which the Supreme Court did later). On April 21, the division bench struck it down, ordering a floor test on April 29.

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The Supreme Court should have allowed the floor test to happen. But on April 22, Justices Mishra and Shiv Kirti Singh passed a stay order on a judgment which was not even before them on the say-so of the attorney general that the judgment was bad. This gave the BJP time to purchase defection. After Mishra and Singh saw the judgment, they did exactly what the Uttaranchal High Court did: Order a floor test. Of course, the Supreme Court claims infallibility. While ordering the floor test, the Supreme Court drew on its Kalyan Singh and Jharkhand judgments unconnected with this situation. The BJP got more time to regroup. Eventually the Congress’s Rawat won.

The lessons from Uttarakhand are clear: One, President’s Rule should never have been imposed to undermine federalism and electoral democracy; two, it was imposed for party political gain only; three, it was de facto defection which the constitutional amendment of 2003 had outlawed; four, the governor behaved in a partisan manner; five, the single judge rightly ordered a floor test but should have suspended President’s Rule (as the Supreme Court did later); six, the division bench rightly struck down President’s Rule and ordered a floor test; seven, the Supreme Court should never have stayed the division bench’s order; eight, the Supreme Court gave time to the disqualified defectors, but that didn’t work out; nine, eventually there was a floor test. The President’s Rule was revoked.

The next Supreme Court hearing is on July 12. Has the Supreme Court given the defectors another chance to catch up?

The writer is a senior Supreme Court lawyer. He has appeared for the Congress in the Uttarakhand case pending in the Supreme Court