Author: Archana Goswami, Student at Jindal Global Law School.
BACKGROUND
The case deals with the situation where Harish Rawat, the then Chief Minister of Uttarakhand lost majority as 9 members of the party defected to other party. This is a recent case of 2016 dealing with the situation where the center and state have different ruling political parties. The ruling party of the state wanted to pass the Appropriation bill, but the speaker ordered for a voice vote to take place. The position of a speaker is supposed to be a neutral position to facilitate in the decision making but here the speaker acted in a partisan manner and behaved unreasonably to dismiss the MLAs (Member of Legislative Assembly). After all the hustle tussle which happen during the time provided by the speaker to prove its majority, President proclamation was made, and the Chief Minister was dismissed. The case here majorly deals with the defection of the members from one party to another (tenth schedule), speaker’s role and president’s rule (article 365). The case is heavily political based. As center enjoys the NDA (National Democratic Alliance) led government and the state of Uttarakhand enjoying the UPA (United Progressive Alliance) led government, both the parties try their best to form their base in Uttarakhand. The speaker acting in a way making it very evident of his inclination towards the ruling party in center. The speaker on his own gave time to the Harish Rawat led government a period of 10 days to prove the majority but on the 9th day the disqualification of 9 MLAs was declared, and President’s rule was declared by proclamation under article 356 of the Indian constitution.
FACTS OF THE CASE
INC (Indian National Congress) was the ruling party in Uttarakhand and Harish Rawat was the chief minister. The Congress won the elections by 36 votes whereas BJP (Bhartiya Janta Party) had a total of 28 votes. 36 votes were required to make a majority for the formation of the government in Uttarakhand. In 2016, 9 of the MLAs defected to the other party i.e., BJP and the ruling party lost its majority. The speaker gave a 10 days’ time to prove its majority. 18th of March 2016 was the day of Appropriation bill to be passed and the vote counting to take place instead the speaker denied for the vote count and ordered for a voice vote for the Appropriation bill to pass. 28th of March 2016 was the date given to the CM for proving majority of the harish Rawat lead government i.e., the floor test was supposed to happen on that day. But on 27th of March 2016 the speaker the president proclamation was being made dismissing the Harish Rawat government and establishing President’s rule. Alongside the chaos happening, the Chief Minister was found bribing the members who left the party to join the party back. The horse trading was recorded and further was provided to the governor as well as supreme court.
ISSUES
- As the proclamation was declared without giving the opportunity to the Rawat government to prove its majority by floor test, the question arises here that does the central government have the power to go ahead and quash the order of speaker and impose president’s rule (article 356)?
- Can a judicial review be allowed in such case where it could be seen crystal clear that the rights of certain authorities are being violated and under whose jurisdiction will it come?
- When the Chief Minister said that he has the vote of confidence in the house then why did the union intervene in between and declare the president’s rule?
ANALYSIS
Article 356
The scope and ambit of the power of the union to intervene in the state matter is questionable. The federal structure of the nation gives the power to state as well as center in their respective fields to enjoy power, form government and a lot of other things. The center cannot interfere in the matter where state has the sole jurisdiction. Yet the constitution of India gives the power to the center to intervene in matter where the state functionary is seen failing. The idea of the President’s rule (article 356 of the Indian constitution) is to give power in the hands of the union in case the state fails to run the administration on the governor’s recommendation. The power is taken over by the President only when it thinks fit upon analysing the situation via proclamation. This article is a very controversial article, and it is sometimes difficult to interpret that whether the state wants the president rule or is it merely a political propaganda? Only on failure of constitutional should this article be applied. In other words, a President’s rule should only be applied on the recommendation of the governor and there is a failure of constitutional machinery, only then such intervention is valid on proclamation made by the president. It should be done to act as shield and protect the constitutional machinery of India.
The Sarkaria Commission headed by R.S. Sarkaria gave a detailed analysis on the use of the article 356 of the Indian Constitution. The article is a progressive article and is referred by the Supreme court of India. The Sarkaria Commission report must be referred every time when the question of implementation of the article arises to get the analysis and proper way of implementing the article. The report gives much emphasis on the matter of political crisis where the government of the state is not in a condition to maintain the constitutional machinery in the state. Using this article to meet the political objective is strictly prohibited. Here the governor should reach out to all the possibilities for the restoration of the constitutional machinery in the state before applying the president’s rule. Floor test is a mandatory requirement before it could be declared that the ruling party lost its majority and efforts should be made to resolve the matter at first the state level. The proclamation should be based on reasonable and valid matter and not base on a vaguely political related issue. The abuse and misuse of the article can damage the constitutional machinery and equilibrium in the federal structure of the country.
S.R. Bommai v. Union of India
It is a very important and landmark case while dealing with the matter of president’s rule. It is 9 judge bench judgment and contains a combination of cases while dealing with the implementation of president’s rule. Bommai was the chief minister of Karnataka representing the Janta Dal. He lost the majority in the house on April 21, 1989 due to large scale defection to the other party and further President’s rule was imposed. He then asked for a floor test to take place, but the governor denied as the governor was apprehensive of the fact that he will gain majority by horse-trading. Therefore, the governor appealed the president to implement President’s rule. Bommai further went to the supreme court against the decision of the governor to implement article 356. The supreme court in the judgement made restriction on the arbitrary decisions by the union to impose article 356 mentioning that the power given to president to overtake the control of the state via proclamation is not an absolute one. The exercise of the power should only be after the proclamation approved by both the houses. The case one of the most cited cases when it came to imposing article 356. The court also clarified on the aspect of judicial review possible about proclamation by President. Also, in case where the proclamation is disapproved by both the houses and it lapses a time of two months then after two month the previous government revives.
In the case of Rameshwar Prasad v. Union of India judicial review was analysed. The court held the proclamation to be unconstitutional. The court said that if the governor is acting in a mala fide manner the court has full jurisdiction to review it. Just because the governor is provided with the authority to act in such manner does not mean it can act in partisan manner. The role of governor is to act neutral, therefore any act which indicates biasness should be reviewed.
CONCLUSION
Article 356 was implemented in this case without giving a chance to the Rawat led government to prove its majority in the house. The speaker gave a 10 days’ time to pass the vote of confidence and deciding on the matter of disqualification of the defected members. Just a day before the floor test the union decided in the matter and intervened before having the floor test and declared president’s rule. It is a clear violation of the rights of the ruling party as it was not given the opportunity to prove its majority. The pith and substance of the article is that the party should be allowed to prove its majority and have floor test in the assembly. The evil practice of defection should not be considered as an ultimate result of proving the majority rather it should be interpreted based on 10th schedule. There must be valid grounds on President’s proclamation and should be legitimate enough for it to form a basis to implement the rule.
The moto behind judicial review is to check upon the matter for it being in consistent and not violative of the rules and regulations. Article 226 gives the power to High Court to exercise power over its jurisdiction on person or authority or government. Therefore, if the court thinks that the actions of the said authority is mala fide then it can bring the concerned authority into question and ask for justification of its actions. The actions should not be wheeled on political interest of the authority. The authority should analyse the case and act in accordance with the provisions of the constitution and to protect the sole objective of the constitution to safeguard constitutional machinery and proper functioning of it. The High Court or the Supreme court have the jurisdiction over the matter depending on the appeal made.
India is a federal nation where practically union is given more power than the state. But one should not forget that the constitution has given separate powers to both. It will not be a called a good federal structure if the union time and again interferes in the matter of state. Here in this case the ruling party should have given the opportunity to at least conduct the floor test where the union intervened. There was a sting operation being done on the CM and the gravity of the matter should have been analysed by the authority to facilitate the decision making for the intervention by the union. But the procedure provided must be followed. Only in certain exigency should the union be allowed to interfere. If the floor test failed or resulted in against the ruling party, then fresh elections should have been conducted to maintain the machinery. The speaker was seen in favoring a certain party and intentionally forcing the breakdown of the machinery. The evidence was also available which recorded the CM bribing the defected MLAs to join back the party. These are the question to be left for the court to analyse and give judgment about the validity of the operation conducted and punish accordingly but the state functioning comes before that. We should also keep in mind that it was not one or two but nine MLAs collectively joining other party so there must be some hidden act done to persuade them to leave the ruling party altogether. Therefore, in my opinion the judgment given by the High court of Uttarakhand has been righty interpreted by the judges. Harish Rawat government was asked to be restored in the state of Uttarakhand along with all his council of ministers and resume of the office of chief minister and revive the 3rd Uttarakhand legislative assembly. The future similar cases should follow the interpretation of these cases and keep in mind that union should only be allowed to intervene when there is no other option left for the state to exercise and imposing president’s rule is the sole way to protect the constitutional machinery.
REFERENCES
- R. Bommai v. Union of India, MANU / SC / 0444 / 1994.
- Rameshwar Prasad & Ors v. Union of India, MANU / SC / 0399 / 2006.
- Harish Chandra Singh Rawat v union of India, Manupatra, In the High Court of Uttarakhand at Nainital MANU/UC/0007/2016.
- Sarkaria Commission Report – http://journal.lawmantra.co.in/wp-content/uploads/2015/08/91.pdf