Two sides of the same coin

Faizan Mustafa

BR AMBEDKAR’S 125th birth anniversary is being celebrated with too much pomp. November 26, 1949,  the day the Constitution was adopted and which is celebrated as ‘Law Day’, was declared as ‘Constitution Day’ in November 2015. Eloquent speeches were made, reiterating the government’s commitment to the Constitution and constitutionalism. In 66 years of our republic, the BJP has been critical of successive Congress governments for their onslaught on federalism, particularly through the imposition of President’s rule. 

Invocation of Article 356 in Arunachal Pradesh has exposed the hypocrisy of the BJP. Since the apex court was already seized with the matter, this has become the first case of its kind where precipitative action has been taken in spite of oral assurance of Harish Salve, the Governor’s counsel. This is an effort to interfere with the judicial process. Similarly, the Governor’s decision to prepone the Assembly session without consultation with the Nabam Tuki government, with the  instruction to first take up the resolution of the Speaker’s removal,  smacks of political mala fides. The court in VB Chodhary decision of 1979 held that so long an elected government is in office, the Governor has to act on its advice. After the imposition of President’s rule, the court will have limited powers of judicial review, ie except in cases of mala  fide exercise of power. One wants to salute the Bench headed by Justice JS Khehar for asking the government to produce within 15 minutes the Governor’s report. The learned judges are aware that even serious incidents of public disorder may not be sufficient to conclude that there is breakdown of constitutional machinery.

The BJP’s criticism of Congress governments as to the gross misuse of Article 356 is justified. But is it not emulating the Congress? Have earlier opposition and BJP governments been any different from Congress on President’s rule? 

Article 356 empowers the President to dismiss a democratically elected state government. It is an extreme and unusual power. No liberal democratic constitution of the world, except Pakistan, has such a provision. Both India and Pakistan adopted this provision from the infamous Government of India Act, 1935. Our freedom fighters protested and so the British did not implement  it. Even the Constituent Assembly witnessed a heated debate on the discretion being given to the President in dismissing a state government as presidential satisfaction, as to the breakdown of the constitutional machinery in the state, can be based either on the ‘report of the Governor or otherwise’. The term ‘otherwise’ may include anything and is against the ideals of constitutionalism.

Moreover, if any advice is given by the Centre to the state and it does not pay heed, it shall be deemed under Article 365 that there is ‘breakdown of the constitutional machinery in the state and the government of the state cannot be carried on in accordance with the Constitution’. HV Kamath argued that “let us wind up the Constituent Assembly and go home. This is not the place for us: let us go to the market-place and let us go into streets”. Shibban Lal Sakena said: “We are reducing the autonomy of the states to a farce. These articles will reduce the state government to great subservience of the central government.” He said since the Government of India Act had omitted the identical provision, it was far more progressive than the proposed constitution. Naziruddin Ahmad also took it as a serious encroachment of provincial autonomy when he said: “I think we are drifting, perhaps, unconsciously, towards a dictatorship. Democracy will flourish only in a democratic atmosphere and under democratic condition.” Pointing out serious procedural flaws in the adoption of major amendments in the original clause, he said the Constitution Drafting Committee may now more aptly be called ‘Drifting Committee’.

Ambedkar got Article 356 approved with the assurance that the article shall remain ‘a dead letter’. He was proved wrong as this provision has been used/abused about 150 times.

In Arunachal, the Congress is making much hue and cry. There is some merit in its argument as the Congress, with 31 legislators, enjoys majority and defection was possibly engineered by the BJP. But in dismissing the Communist government in Kerala, the Congress Governor in his report had the audacity to say that “while the securing of a majority of seats in the legislature, however meagre, is a very relevant factor at the time of forming a government, it cannot be pleaded as conferring a continuing right to claim the confidence of the majority”. Indira Gandhi made extensive use of Article 356 on political considerations. She did not hesitate in using it even against the Congress governments. 

But the first large-scale misuse of Article 356 was made by the Janta government, of which the BJP was a constituent and its stalwarts like Advani were ministers in it. Home Minister Charan Singh wrote a letter to nine Congress chief ministers advising them to seek fresh mandate as people in the 1977 Lok Sabha polls had voted against the Congress in these states. Unfortunately, the Supreme Court approved this logic, ie President’s rule can be imposed not only in situations of political instability or loss of majority, but also if the ruling party in the state gets defeated in parliamentary elections. In 1980, when Indira returned to power, she replied in the same currency with nine similar dissolutions in one go as this time people had voted for the Congress.

The dismissal of three BJP governments after the demolition of the Babri mosque in 1992 for supporting karsevaks was another instance of the misuse of powers by the Congress. This too was also upheld by the court in the famous SR Bommai case on the ground that these governments were a threat to secularism. If the court was convinced about the BJP’s lack of faith in constitutional ideals, it should have considered the cancellation of BJP’s registration as a political party rather than upholding the dismissal of BJP governments.

The Vajpayee government’s recommendation for President’s rule in 1988 in Bihar was another instance of the misuse of powers under Article 356. Sunder Singh Bhandari, as Governor, sent a report that there was a breakdown of the constitutional machinery due to the deterioration of law and order. He also quoted CAG report and talked of financial anarchy. Strangely, he also noted that 1,200 contempt of court cases were pending in the Patna High Court. The charge of ‘constitutional vandalism’ was not substantiated. In fact, law and order had improved according to ‘Crime in India’ report of the Union Home Ministry. President KR Narayanan asked for the reconsideration of the recommendation and the presidential minute rebutted all charges. He also referred to the Sarkaria Commission to conclude that the Rabri government enjoyed majority. Similarly, Governor JP Rajkhowa’s report has cited absurd reasons like ‘I was abused’, ‘there was no semblance of a state government’. These are general and subjective statements. President Pranab Mukherjee should have also returned the recommendation and reminded the government that due to lack of majority in the Rajya Sabha, getting parliamentary approval would be difficult.

In Bommai case, the court held that powers under Article 356 must be used sparingly. Let the Modi government rise above petty politics by revoking President’s rule in Arunachal, as the apex court is likely to quash the presidential proclamation and order a floor test.

 — The writer is the Vice-Chancellor of NALSAR University of Law, Hyderabad