Tuesday, 10 May 2016


Federalism and democracy are the two pillars which have to be honoured. The origins of Article 356 are in the Government of India Act, 1935 and reflect the superior powers of the governor general over the elected provisional governments. The powers of the executive used in before democracy came to India and are still there. If an elected government of the state level can be removed by the government at the centre, and that decision can be overturned by the judiciary where lays the final authority.

 The government at the centre however can only be removed by a vote of confidence in Parliament. There is no President rule at the centre. So democracy rule is at the centre but not in the state. A debate about 365 is urgent. If India is a democratic country, all legislatures are equal. If it is a federation, the centre has to respect the states equally. Article 365 provides that if the President either on the receipt of a report from the Governor of a state or otherwise is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance the provisions of this Constitution, he may make a Proclamation to the effect. The only ground on which a proclamation can be made under Article 356 is the failure of the Constitutional Government in the state. It includes failure on the part of the state to comply with to give effect to the directions given by the Union Government. Since the commencement of the Constitution Article 356 has been invoked on more than 110 occasions. Expect on few occasions the President has acted only when the Governor of the State has reported the failure constitutional machinery in the state. Usually President’s rule, invoking Article 356, has been imposed under the following situations-
a) A situation resulting from instability of the State Government.
b) A situation resulting from law and order problems.
c) Frequent defections and change of loyalties by the legislators.
d) On the ground of corruption, maladministration, misuse of power for partisan ends
e) The defeat of the ruling party in a state, at the Lok Sabha election.

Under Article 356 (3) a proclamation imposing Rule shall be laid before each House of Parliament and shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. The High Court had many options in dealing with the writ petitions challenging President’s Rule. It is extremely unlikely that the government will have the requisite majority in the Rajya Sabha, in which case President’s rule will cease to operate after expiration of two months.

The Single Bench of Uttarakhand High Court on 29th March,2016 ordered a floor test in the assembly and gave ousted Chief Minister Harish Rawat a chance to prove his legislative majority in the hill state that is under President’s Rule. Uttarakhand came under President’s rule, a day before Rawat was to prove his majority in the house. Hearing the petition by Rawat, the Court also said that all nine Congress rebels who were disqualified by the speaker will be allowed to take part in the vote. It said the result of the voting should be presented to the court. The court has ordered a registrar to oversee the vote in the assembly. “The High Court accepts the point that despite President’s Rule there is enough scope for judicial review to allow a floor test to take place.” The Uttarakhand political crisis began when nine Congress legislators, including former Chief Minister Vijay Bahuguna, whom Rawat replaced, revolted against the chief minister and turned to BJP. If President’s Rule is declared unconstitutional the floor becomes irrelevant and meaningless. Courts cannot and should not prevaricate nor procrastinate when such momentous issues arise, always remembering that its role is to determine the constitutionality of President’s Rule not its wisdom or morality. Capping a nine-day high-voltage political drama, the Centre on 27th March,2016 brought Uttarakhand under President’s rule citing a constitutional breakdown in the wake of a rebellion in the ruling Congress. President Pranab Mukherjee signed the proclamation under Article 356 of the Constitution dismissing the Congress government headed by Harish Rawat and placing the Assembly under suspended animation this morning on the recommendation of the Union Cabinet.

According to Article 356, President’s rule can be imposed in a state if a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. The expression “breakdown of constitutional machinery” has not been defined in the Constitution. It can happen due to political reasons such as hung assembly, the government losing majority in the assembly, failure of any political grouping to form a government, defections and break-up of coalition or because of insurgency etc. Whatever may be the reason, the President has to be satisfied about of breakdown of constitutional machinery in the state. Generally, the governor sends a report in this regard to the Centre and it’s his/her report that forms the basis for the Union Cabinet’s recommendation to the President for invoking Article 356 to impose President’s rule.

However, the provision also says that the President can take such a decision even “otherwise” (i.e. even in the absence of governor’s report). But in any case, the President has to be satisfied that the constitutional machinery has broken down in the state. While sending a report to the Centre, the governor is not supposed to go by the advice of the state cabinet and is exercises his or her own discretion. On the contrary, the President has to go by the advice of the Union Cabinet. But he can seek clarifications from the council of ministers. Once President’s rule is imposed, the assembly ceases to function and the state comes under the Central government’s direct control. The assembly is generally kept in suspended animation. The powers of the state assembly become exercisable by or under the authority of Parliament. The executive power shifts from the council of ministers to the governor.

Once President Rule is imposed, it must be approved by Parliament within a period of two months. It can’t last for more than six months unless its extension is approved by Parliament.

SR Bommai case
In the SR Bommai case, the Supreme Court ruled in 1994 that courts can’t question the Union Cabinet’s advice to the President but they can question the material behind the satisfaction of the President regarding breakdown of constitutional machinery. It also said that the use of Article 356 was justified only when there was a breakdown of constitutional machinery and not that of administrative machinery. The Supreme Court in January 2006 declared the dissolution of the Bihar assembly as null and void in the Buta Singh case. It held that the governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for imposing President’s rule. The “drastic and extreme action under Article 356” cannot be justified on whims and fancies of the governor and the council of ministers should not accept it as “gospel truth”.

 A Division Bench of the Uttarakhand High Court on Wednesday stayed the previous order of the Single Bench for conducting a floor test to determine the majority in the House.  In 1994, the Supreme Court in the landmark SR Bommai vs Union of India case held, "In all cases where the support of the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House."They added, "the assessment of the strength of the Ministry is not a matter of private opinion of any individual be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such a demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides”. The court also made clear the circumstances under which the decision to impose President’s Rule can be made without going for a floor test. The court held, “The sole exception to this will be a situation of all-pervasive violence where the Governor comes to the conclusion — and records the same in his report — that for the reasons mentioned by him, a free vote is not possible." These guidelines laid down in the SR Bommai vs Union of India judgement were not even considered in the Uttarakhand case. On 27 March, just a day before the vote of confidence in the Uttarakhand Legislative Assembly was to be taken, and Chief Minister Harish Rawat was to prove majority support for his government, the Centre dismissed the Congress government and imposed President's Rule, citing a breakdown of governance. With the disqualification, the strength of the 70-member Uttarakhand Assembly has been reduced to 61.

When the Uttarakhand High Court staying the floor test, this question will prop-up again when the incumbents will be asked to prove their strength. Whether the nine disqualified candidates should be allowed to vote in the floor test should be debated on the basis of legal and constitutional provisions. If a little caution had been observed while reading the Constitutional provisions; the guidelines in the SR Bommai vs Union of India had been followed, then the common man would have retained his trust in the democratic process of this country. The apprehensions regarding the probable misuse of Article 356 (which empowers the Union to take over the government of the state on the recommendation of the governor or otherwise) can be visibly gauged from the above Constituent Assembly debate — the apprehension of which to a great extent has come to fruition with the abject misuse of the provision on numerous occasions, since the enactment of the Constitution. However, it was in the SR Bommai case in 1994 that the Apex Court made the indiscriminate and arbitrary use of the Article 356 almost impossible by laying down certain guidelines to be taken into account before invoking the Article 356. But time and again, the principles laid down in the landmark judgment have been openly flouted, the most recent being the imposition of President’s Rule in Uttarakhand.

Among various directives issued in the Bommai case, the two that had the most far-reaching ramifications were that it allowed judicial review of the decision of the imposition of the President’s Rule and made it imperative that the majority enjoyed by the council of ministers be tested on the floor of the House, which was not followed in Uttarakhand and in many cases in the past. Further, the High Court has power of judicial review as to whether there has been malafide exercise of power while imposing the President Rule or not?

Therefore, better course on the part of Division Bench of High Court could have been, if it would have given a chance to prove the majority by council of ministers on the floor of House in Uttarakhand.

Dr. Hari Mohan Mittal,
Professor - School of Law


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