Author: V Gowri Shankar, Student at Jindal Global Law School.
ABSTRACT
From enactment of the Constitution of India, the President’s Rule has been misused multiple times in history. This paper is an attempt to prevent the mishap from occurring further. As most of the precedent cases have commonly reiterated that ‘the Governor has to exhaust all the remedies before declaring Constitutional machinery failure in his report to the President that suggests invocation of Article 356 of the Constitution of India’. This paper proposes that before sending the report the Vice-President has to verify and authenticate the report from the Governor before it reaches the President of India. The idea of this paper is to use the highest power of a democratic nation in an efficient way as envisaged by Dr. Ambedkar and other members of the Constitution Draft Committee.
Keywords: Constitution, President’s Rule, Democratic Nation.
INTRODUCTION
President’s Rule is a power of Union government (vested to the President at first and delegated to other executives, instruments of state and authorities by the President) over the state government, which is subject to many debates from even before the official publication of the Indian Constitution (in the drafting committee of the Constituent assembly) to modern days. The President’s Rule is inherently linked with many provisions of the Indian Constitution. This essay is an attempt to cover the President’s rule, limited to pertinent and different, provisions and judgments. The exploitation of the President’s Rule are being discussed in this essay, and in furtherance, the second half of the essay proposes an amendment to the existing Article 356 of the Indian Constitution to use it apropos to the Members of Drafting Committee of Indian Constitution.
MOST PERTINENT PROVISIONS OF PRESIDENT’S RULE
There are few provisions in the Indian Constitution which empowers various authorities like Governor of each state, the President of India to involve in the process of President’s rule (in other words Proclamation). Articles 355, 356, 357 and 365 are remarkable provisions which form a prominent portion in discussion of this topic. This essay mostly deals with Article 356. Through Article 356, President can have access to enormous powers which are discussed below:
According to Clause (1) When the President is satisfied that a state government cannot function as per the provisions of the constitution, from the sources such as Governor’s report and otherwise, President can by proclamation: assume the functionary powers of state (which can be any or all the powers of Governor of the state) other than Legislature. And further the declaration issued may transfer the powers of that state legislature to be exercised by the Parliament. Another exception that is mentioned in clause (c) of this provision states that, the President shall not assume any power that is vested in or that is exercisable by the High court.[1]
Clause (2) and (3) states that the proclamation can be revoked or varied in a subsequent proclamation and further for extending the proclamation beyond the initial two months from commencement, the approval of both houses of the Parliament will be required. The next clause clarifies that the proclamation does not cease to operate until revocation, once the approval of both houses is obtained, then the proclamation is valid till six months from the date of approval. After each six months, the approval of both houses is mandatory to continue with the proclamation. However, the period of proclamation cannot exceed three years even if both the houses of Parliament has approved the same.[2]
This power of the President to take over the functionary powers apart from the legislative powers is acquired through section 93 of the Government of India Act, 1935.[3] As per Article 356, the president at his discretion adjudicates the situation based on Governor’s report and other sources as well and determine if there must be enforcement of President’s rule.[4]
Why should this Article be amended in the first place? In the discussion of Constituent Assembly Dr. Ambedkar was questioned of the misuse of the President’s power, which is an ultimate power in the democracy. For which he replied that ‘I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces[5]’. But after enactment of Constitution, this power was misused several times[6], which was exactly opposite to the envision of Dr. Ambedkar and hence there is a need to critically analyse and develop the provisions and jurisprudence.
The current legal regime mostly emphasizes critically on the functions performed by the Governor of states with regards to Article 356. The evolution of jurisprudence is in compliance to the envision of Dr. Ambedkar that, all the possible alternative options to stabilise the state government must be explored and exhausted before invoking Article 356 and invoking Article 356 has to be a last resort.[7]
CURRENT LEGAL JURISPRUDENCE OF ARTICLE 356
This section covers few landmark cases of President’s rule, when the Governor is convinced that there is a constitutional machinery failure in a state[8]. The governor must ensure all the possible remedies are exhausted[9], before sending a report to the President. As a result of which, in the contemporary times the court or the cases directs the issue towards the report made by the Governor of the state in order to invoke Article 356. The most recent case, in Shivraj Singh Chauhan case[10] the Governor dismissed six individuals from members of the Cabinet based on the recommendation made by the Chief Minister of Madhya Pradesh, which in turn was accepted by the speaker as per Rule 276 of Madhya Pradesh Assembly Rules.
In view of which, the court observes and scrutinizes the decision made by the Governor to submit a report in recommending the Floor-test to be conducted under Article 356 and whether it should be done as per the given circumstances of that case. Such dismissal and reporting the need of Presidential Rule seems to lack adequate prudence or lack of examination of alternative methods to resolve the issue, before suggesting Article 356.
In another recent case, E. Giri Yadav[11], the court analyses the situations that could invite attention of Article 356. This has been a long-resolved issue but the idea of invoking this question again, is to state that Article 356 is not only restricted to the issues with regards to how “the Government of state is carried on, in accordance with the provisions of this constitution[12]”, but it can also be invoked germane to “internal disturbance” caused by armed rebellion and not in case of any other internal disturbance.
In Nabam Rebia, the court states that “The Governor’s report may not be conclusive, but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report[13]”. Further the court states that Governor is a very high constitutional functionary who has to act in a manner which is fair and consistent to the oath taken. By envisaging this the court also affirmatively states that in certain cases the report could misguide the President or influence President’s decision as well which may be disastrous apropos to the concept of Federation. The Report presumes major reliance and expects at most prudence on discharge of the role of Governor.
ISSUES OF CENTRAL FOCUS
From the above-mentioned jurisprudence and the recent legal position of the courts with regards to President’s rule and specifically Article 356, certain issues are identified to be addressed in this essay. It is addressed by proposing amendment of a certain provision of the constitution that are mentioned below:
- Who has the discretionary powers to envisage certain situation to be appropriate to seek involvement of Article 356?
- How much of reliance and validity must be attached by the president while considering the report made by Governor in consonance with Article 356?
- Is there an adequate necessity to verify the substantiality of the Governor’s report before passing it to the President?
- Does the provided Immunity of higher executive functionaries, takes less effect after the implementation of the new amendment?
PROPOSAL OF AMENDMENT OF ARTICLE 356
This section proposes an amendment to the existing Article 356 via which the misuse of existing powers could be mitigated. The Parliament of India can amend Article 356, as it did in the forty-second amendment in the year 1976.[14] Two differences between the existing Article and the proposal of amended Article. The existing Article 356 (1) is replaced as mentioned below, and with one proviso in addition to it. The two components of the amended Article 356 Clause (1) are:
- If the President, on receipt of report from the “Governor of state verified by the Vice-President of India or Otherwise,” is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provision of this constitution, the President may by Proclamation –[15].
- ‘Otherwise’ here means, any source which is not less competent than the report.
REDRESSAL FOR ISSUES BY NEW PROVISION
This section aims to answer the questions addressed in the section ‘Issues of central focus’ using the provision stated in ‘Proposed amendment’.
The First issue deals with the discretionary powers over proclamation of a state government. According to the Government of India Act 1953, Section 93, these powers were wholly vested to the Governor of the province was later abrogated and transferred to President of India under Article 356, as questioned by Mr. B. Das in the older Constituent Assembly.[16] According to the new provision, the answer would be that the ultimate discretionary power to determine whether the proclamation of state government has to happen or not, vests in the President of India.
But the discretionary power to envisage a situation and decide to propose Article 356 to the President via report; is bifurcated from Governor of the state to the Governor of state and Vice-President of India (with a certain limit of Hierarchy). This bifurcation in operation would allow the Governor of a state to request the involvement of Vice-President and proceed with the “exhaustion of other remedies before invoking Article 356[17]” along with evidence for the same. This would be verified by the Vice-president along with the produced evidence. And if the Vice-President deems the report fit and gains the confidence that all the possible remedies has been exhausted, before the situation could turn worse or it is too late, the report may be sent to the President of India.
Secondly, the report was drafted by Governor of the state and sent to the President of India. So, the courts suggested that the term “otherwise” did not exist in the Article 278 (corresponding to Article 356) of the draft constitution but was later added.[18] Hence, the President is provided with discretionary power to consider ‘other sources’ apart from the Governor’s report alone. Whereas via the current proposal for amendment, the reliance and validity of the report is envisaged by the Governor and verified by the Vice-President of India and hence limits the scope of reliance over ‘other sources.’ In order to reiterate the same in other words, the President of India can still enjoy the discretionary powers apropos to the term ‘Otherwise’ but, in a restricted ambit than in the provision before this proposed amendment. As an additional step is included and verified to simplify the process of scrutiny by the President; much more legitimacy is added to the report. In effect the consequence is that the reliance of the President over the report has increased than before, but discretionary power of President also does exist. The motivation behind the proposal of this amendment is, to impede the existing process, by lengthening it and including the liability on concerned executive Union authorities, to use Article 356 in a productive manner.
In order to address the third and fourth issues together, the negligence of the Governor in exhausting the other remedies before invoking Article 356 has been scrutinized in several previous judgements. For example, in Rameshwar Prasad v Union of India, which held floor-test has to be conducted to ascertain whether there is confidence in the existing government, before invoking Article 356.[19] Due to the recurrence of such negligence by the Governor, or it could be addressed as a gap in the process before taking a huge step in a democratic country, essentially there has to be a step for verification of such report, before it is forwarded to the President of India. In addition to the same, the immunity provided to the Governor prevents the judiciary because of the reason that Judiciary is not competent enough to assess the lack of Bona fide of the Governor. Hence there is a mandate for verification of such reports.
By way of new provision, the Vice-President of India could verify if all the possible alternatives are exhausted in such situation. Due to such verification and analyses, the consequence is that (though the immunity remains); the threshold of liability has increased. What does this enable to enforce? It is subject to change in a way that, in a minimal sense the mala-fide intention present could be assessed by the Higher courts. This provision does not prescribe any detriment for the same, whereas it may be decided based on court’s order with regards to the cases which has been proved with mala-fide intention. However, the court’s ambit is restricted to the grounds of material basis of the report and other sources and not the contents; owing to the question of ‘Political Question Doctrine’ as discussed in State of Rajasthan v Union of India.[20] This is closely relatable to the suggestions for the judges to approach Dissolution case: (d), from the Article ‘The Dissolution case: Politics at the bar of the Supreme Court’. It states that the judges may declare a policy of judicial restraint, examine and explain “Political Question” doctrine and comment on the proposed action of the government.[21]
WHY SHOULD IT BE THE VICE-PRESIDENT WHO HAS TO BE INVOLVED IN THIS PROCESS?
This sub-section deals with the factors which played key role in having the Vice-President of India as an appropriate choice rather than other officials. Since Vice-President has the duty to be the President of India for a certain period of time as mentioned in Article 65.[22] In case of death, removal or resignation (or otherwise) of the actual President, the vice-president shall act as President of India. And according to (3), the Vice-President (when discharging the duties of the President) is entitled to have all the powers and immunities of the President itself. During the above-mentioned term, if a crucial situation occurs, that might compel the invocation of Article 356 then, the Vice-President must be able to take an informed and experienced decision. Considering other authorities or government officials as a replacement in this position may not serve the same purpose. Another point of support is that, as the duty of Vice-President is to be the chairman of Council of states (Rajya Sabha) has to occupy the President’s chair for a certain period, the chairman position of Rajya Sabha will be taken over by the Deputy Chairman of Rajya Sabha as mentioned in Article 89 of the Indian Constitution.[23]
CONCLUSION
As the proclamation power has been exploited in the past, the legislature has to amend the provision for the welfare of the nation. The proposed amendment does not disregard the powers and legitimacy of the Governor of states in India. The idea for proposal of an amendment was nurtured from “Dr. A.P.J. Abdul Kalam’s quote that “While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system”, as mentioned in Punchhi Commission report.[24] This is an attempt to minimalize the unconstitutional use of powers, awarded to Union executives. The motivation behind the proposal of amendment is, to impede to the existing process, by lengthening it and including the liability on concerned executive Union authorities, to use Article 356 in a productive manner.
REFERENCES
[1] The Constitution of India, Article 356.
[2] Refer to The Constitution of India, Proviso of Article 356, Clause 4
[3] Provisions in Case of Failure of Constitutional Machinery, Section 93, 1935.
https://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf
[4] Supra, Note 2, Para 55.
[5] Speeches of Ambedkar in the Constituent Assembly on Provisions Relating to President’s Rule, John Sebastian
[6] S.R. Bommai v Union of India, (1994) 3 SCC 1
[7] Supra, Note 2
[8] Government of NCT Delhi v UOI, 2018, MANU/SC/0680/2018
[9] Supra, Note 2, Para 97
[10] Shivraj Singh Chouhan and Ors. vs. Speaker Madhya Pradesh Legislative Assembly, MANU/SC/0369/2020
[11] E. Giri Yadav vs. Union of India and Ors. (20.07.2012 – APHC) : MANU/AP/0567/2012
[12] The Constitution of India, Article 355.
[13] Nabam Rebia vs Deputy Speaker And Ors, 2016 SCC Online SC 30
[14] The Constitution (Forty-Second Amendment) Act, 1976, Legislative Department
http://legislative.gov.in/constitution-forty-second-amendment-act-1976
[15] For the complete provision refer the Indian Constitution, Article 356.
[16] ‘Constituent Assembly Debates’, Constitution of India, Volume 11, 15 November 1949
https://www.constitutionofindia.net/constitution_assembly_debates/volume/11/1949-11-15
[17] Supra, Note 2
[18] Supra, Note 1
[19] Rameshwar Prasad & Ors vs Union Of India, 24 January 2006
[20] State Of Rajasthan & Ors. Etc. Etc vs Union Of India, 1977 AIR 1361
[21] ‘The Dissolution case: Politics at the Bar of the Supreme Court’, Alice Jacob and Rajeev Dhavan, Volume 19 December 1977.
[22] The Constitution of India, Article 65
[23] The Constitution of India, Article 89.
[24] ‘Constitutional Governance and the Management of Centre-State Relations’, Justice Madan Mohan Punchhi, Volume 2, Centre-State Relations Commission Report, March 2010 [famously known as Punchhi Commission Report]