President’s Rule

Get to know the historic evolution of these powers vis-a-vis daily news.

President’s Rule

President’s Rule in Puducherry

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Puducherry, President's Rule

Mains level : Presidents' Rule

The Union Cabinet has approved a proposal by the Home Ministry to dissolve the Puducherry Assembly and impose President’s Rule in the Union Territory.

Try this question from CSP 2017:

Q.Which of the following is not necessarily the consequences of the proclamation of the President’s Rule in a State?

  1. Dissolution of the State Legislative Assembly
  2. Removal of the Council of Ministers in the State
  3. Dissolution of the local bodies

Select the correct answer using the code given below

(a) 1 & 2 only

(b) 1 & 3 only

(c) 2 & 3 only

(d) 1, 2 & 3

What is President’s Rule?

  • President’s rule is the suspension of state government and imposition of direct central government rule in a state.
  • This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.
  • Under Article 356, this move can be taken “(1) If the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution…”

How long President’s Rule can last?

  • A proclamation of President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly and stakes his claim to form a government.
  • The revocation does not need the approval of Parliament.
  • Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.
  • This six-month time-frame can be extended in phases, up to three years.

Conditions for Prez Rule

  • Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
  • Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
  • Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
  • Where a constitutional direction of the Central government is disregarded by the state government.
  • Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
  • Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.

Notable judgements: The S.R. Bommai Case

Bommai v. Union of India (1994) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues.

  • The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed the President’s rule to be imposed over state governments.
  • Article 356 (1) has been deliberately drafted in a narrow language by the Founding Fathers so that political parties in the Centre does not misuse it to subvert federalism, it had noted.
  • The President has to be convinced of or should have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen.
  • The court had stated that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review”.

What was its verdict?

  • The judgment had explained that in a multi-party political system, chances are high that the political parties in the Centre and the State concerned may not be the same.
  • Article 356 cannot be used for the purpose of political one-upmanship by the Centre.
  • Hence there is a need to confine the exercise of power under Article 356[1] strictly to the situation mentioned therein which is a condition precedent to the said exercise,” the court had said.

Fouling factors

The imposition of President’s Rule in a state would be improper under the following situations:

  • Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
  • Where the governor recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
  • Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
  • Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
  • Where the power is used to sort out intra-party problems of the ruling party.

Back2Basics: Puducherry

  • Puducherry is a union territory formed out of four territories of former French India, namely Pondichéry (Pondicherry; now Puducherry), Karikal (Karaikal), Mahé and Yanaon (Yanam), excluding Chandannagar.
  • It is named after the largest district, Puducherry.
  • The areas of Puducherry district and Karaikal district are bound by the state of Tamil Nadu, while Yanam district and Mahé district are enclosed by the states of Andhra Pradesh and Kerala, respectively.
  • It is entitled by a special constitutional amendment act of 1962 to have an elected legislative assembly and a cabinet of ministers, thereby conveying partial statehood similar to the UT of Delhi.
  • It is administered by a Lieutenant Governor.

President’s Rule

Possibility of judicial use or misuse of Article 356

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 356

Mains level : Paper 2- Misuse of article 356

Article 356 and the word ‘otherwise’ in it has led to the recent Andhra Pradesh High Court order. The order raises several questions. The article deal with this issue.

Controversial High Court order

  • Recently the Andhra Pradesh High Court directed the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’.
  • The order opens up the possibility of use or even misuse of Article 356 by the judiciary.
  • The Supreme Court of India has stayed the order.
  • However, we need to go deeper into this observation and look at the controversial provision of Article 356 due to which the High Court could make such an observation.

Historical background of the article

  • Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
  • Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it.
  • The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
  • It was agreed in the Constituent Assembly that the Governor could use this emergency power.
  • By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre.
  • After several revisions, provision became Article 278 (now Article 356).

The issue with the word ‘otherwise’

  • H.V. Kamath criticised the word ‘otherwise’ and said only god knows what ‘otherwise’ means.
  • As the Governor had been made a nominee of the Centre by this time, he asked why the President could not have confidence in his own nominees.
  • ‘Otherwise’ can include anything including a presidential dream of breakdown of constitutional machinery in a state.
  • The Andhra Pradesh High Court could pass such an order due to this very term ‘otherwise’.
  • This word negates the ideals of constitutionalism by giving unlimited powers to the Centre, also allowed the High Court to overstepped the line.
  • But this is not the first instance of judicial overreach on this issue.
  • On August 13, 1997, a Patna High Court had observed that the High Court could also report to the President about the breakdown of constitutional machinery in the State.

Repeated misuse of Article 356

  • In the very first invocation of Article 356 in 1951, central government removed the Gopi Chand Bhargava ministry in Punjab though he enjoyed the majority.
  • In 1959, it was used against the majority opposition government of the E.M.S. Namboodripad government in Kerala.
  • Indira Gandhi used Article 356 as many as 27 times.
  • The most notable case of non-use of Article 356 was the refusal of the P.V. Narasimha Rao government prior to the demolition of the Babri Masjid.

Consider the question “Examine the contest in which the word ‘otherwise’ in Article 356 leads to judiciary exercising its powers. What are the concerns in such case?”

Conclusion

Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.

President’s Rule

Andhra Pradesh High Court and the CM Row

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 356

Mains level : Presidents' Rule

The Supreme Court has stayed an Andhra Pradesh High Court order intending to embark on a judicial enquiry into whether there is a constitutional breakdown in the State machinery, requiring a declaration of President’s rule.

A backfire from the AP High Court

  • Andhra Pradesh CM had earlier sparked controversy by writing to the CJI complaining about a Supreme Court judge for allegedly influencing posting of cases in the State High Court.
  • The alleged Judge is slated to be the next Chief Justice of India, and some judges of the AP High Court have opened sharp criticism over AP CM’s move.

What did the Supreme Court say?

  • The apex court found the enquiry highly disturbing. Hence it decided to stay the order.
  • Solicitor General Tushar Mehta asked why the High Court “should go into whether there is a constitutional breakdown in the State”.
  • The Solicitor General of the state government argued that it was not up to the High Court to enquire and recommend President’s rule in a State.

Citations for the President’s Rule in a State

  • President’s rule is the suspension of state government and imposition of direct central government rule in a state.
  • It is Article 356 that deals with the failure of constitutional machinery in a State.
  • This power to impose President’s rule exclusively vests in the Central Executive.
  • Under Article 356, this move can be taken- if the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen…..
  • The power in this regard, like sending a report either to the President of India or to the Governor of the concerned State or to record a finding in that regard, cannot be exercised by the judiciary.

How did the AP govt respond?

  • The AP govt said that the High Court’s observation violated the Basic Structure doctrine of the Constitution.
  • Under the constitutional framework, it is not for the courts to decide as to whether there is a constitutional breakdown in a State.
  • The said power has been specifically conferred upon a different constitutional authority – and rightly so.
  • It is needless to mention that the constitutional courts do not have any judicially discoverable and manageable standards to determine if there has been a constitutional breakdown,” the petition contended.

Back2Basics:

President’s Rule

  • President’s rule is the suspension of state government and imposition of direct central government rule in a state.

How it is imposed?

  • President’s Rule implies the suspension of a state government and the imposition of direct rule of the Centre.
  • This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.
  • Under Article 356, this move can be taken “(1) If the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution…”

How long President’s Rule can last

  • A proclamation of President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly, and stakes his claim to form a government.
  • The revocation does not need the approval of Parliament.
  • Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.
  • This six-month time-frame can be extended in phases, up to three years.

The S.R. Bommai Case

  • R. Bommai v. Union of India (1994) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues.
  • The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President’s rule to be imposed over state governments.
  • Article 356 (1) has been deliberately drafted in a narrow language by the Founding Fathers so that political parties in the Centre does not misuse it to subvert federalism, it had noted.
  • The expression used in the Article is ‘if the President is satisfied”, the court had observed.
  • In other words, the President has to be convinced of or should have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen.
  • The court had stated that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review”.

What it directed?

  • The judgment had explained that in a multi-party political system, chances are high that the political parties in the Centre and the State concerned may not be the same.
  • Article 356 cannot be used for the purpose of political one-upmanship by the Centre.
  • Hence there is a need to confine the exercise of power under Article 356[1] strictly to the situation mentioned therein which is a condition precedent to the said exercise,” the court had said.

Conditions for Prez Rule

  • Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
  • Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
  • Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
  • Where a constitutional direction of the Central government is disregarded by the state government.
  • Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
  • Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.

President’s Rule

Issues related to the Office of Governor

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Constitutional provisions related to the Governor

Mains level : Paper 2- Misuse of discretionary power by the Governor

The article deals with the role of Governor in the state and issue of misuse of discretionary power vested in him.

Constitutional provision related to Governor

  • Various Raj Bhavans have become embroiled in controversies over the decade.
  • This is partly because the Constitution of India does allow a certain discretion to the Governor.
  • And a discretion invariably does get abused.
  • The framers of the Constitution had rejected an elected Governor because they were unambiguously clear that political power would only be vested with elected executives.
  • Yet, they were not inclined to put in a formal Instrument of Instructions for the Governors and were content to believe that political decencies and correctness would be observed both by the Governor and the Chief Minister.

As the distinguished constitutional expert, Nani A. Palkhivala explained it “the Constitution intended that the Governor should be the instrument to maintain the fundamental equilibrium of the people of the State and to ensure that the mandates of the Constitution are respected in the State”. 

Misuse of ‘discretion’ by Governors

  • As an appointee of the Union Government, the Governors have been prone to act on the instructions by ruling party at the Centre.
  • Inevitably the “discretion” in choosing a Chief Minister, or requiring a Chief Minister to prove his/her majority, or dismissing a Chief Minister, dissolving the legislature, recommending President’s Rule — came to be tainted with partisan political considerations.
  • More often than not, the governor’s discretion was abused, sometimes absurdly, even whimsically.
  • In the S.R. Bommai case, the Supreme Court did try through its judgment to prevent the misuse of power.

Conclusion

The guidelines given in the S.R. Bommai case should be adhered to by the Governor and should avoid conflict with the elected governments in the States.

President’s Rule

Issues with nominated CM’s election

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Discretionary powers of Governor

Mains level : Read the attached story

  • Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
  • His current term in office approaches its end with a looming constitutional crisis.

The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.

CM without Election

  • Maha CM took oath in accordance with Article 164(4).
  • The article states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
  • It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.

Governors dilemma

  • A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
  • But with the pandemic raging, a by-election cannot be held.
  • The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
  • If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
  • CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.

What does the Judiciary have to say?

  • In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
  • Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
  • The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.

Testing the nomination route

  • The nomination route for non-member Ministers is less common — but not unconstitutional.
  • In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
  • Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
  • Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
  • Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
  • Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

The role of the Governor

  • It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
  • However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
  • Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.

A new issue for debate

  • It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
  • Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.

The question of discretion

  • What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
  • In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria and held that the Governor cannot use his discretion in nominating members to the Council.
  • He has to go by the aid and advice of the Council of Ministers.
  • Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.

Case in Maharashtra

  • It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
  • However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
  • Thus, the legislative power of the Assembly can be inferred from this provision.

Also read:

Role of Governor in State govt. formation

President’s Rule

Administration of Oath in State Legislature

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Read the attached story

Mains level : Administration of Oath in State Legislature

  • Former Maharashtra CM has alleged that the oath-taking ceremony of the new government had violated the Constitution.
  • He was referring to the invocation of names of various personalities at the start of the oath, before reading out the text, which he alleged had altered the oath itself.

Administration of Oath

  • Article 164(3) says: “Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
  • The Third Schedule requires the taker of the oath to either “swear in the name of God” or to “solemnly affirm” to “bear true faith and allegiance to the Constitution…”.
  • According to constitutional experts and those familiar with procedures and rules of swearing-in ceremonies, Art 164 makes it clear that the text of the oath is sacrosanct, and the person taking the oath has to read it out exactly as it is, in the given format.
  • If a person wanders from the text, it is the responsibility of the person administering the oath — in this instance the Governor — to interrupt and ask the person being sworn in to read it out correctly.

Role of the Governor

  • The Governor’s approval is key. If the person administering the oath approves the oath, the matter is closed.
  • Immediately on taking the oath, the person who has been sworn in, must sign a register.
  • The register is attested by the Secretary to the Governor, which means it has been approved by the Governor.
  • Ultimately it is the responsibility of the Chair, the functionary administering the oath, in this case the Governor.
  • Once Governor takes it as read, and the Secretary to the Governor has attested that the oath has been administered, and the gazette notification has come out, then it is no longer an issue.
  • It cannot be legally challenged a/c to a former Rajya Sabha Secretary General.

Instances of deviation

  • The most famous case of a political leader changing the oath was in 1989, when Devi Lal inserted the words “Deputy Prime Minister” as he was being sworn in to Prime Minister V P Singh’s cabinet.
  • He was immediately corrected by President R Venkataraman.
  • The practice of invoking gods, national leaders, reformers, while administering the oath of office can be termed as immature, as it detracts from the importance of the oath.

President’s Rule

[op-ed snap] Gubernatorial restructuring

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Restructuring the powers of governor

Context

The actions of the Maharashtra Governor over the last few days have invited scrutiny. Even after the Karnataka Assembly elections this year, the actions of the Governor were subjected to judicial scrutiny.

Misuse of power

  • Throughout the sequence of events, the governor was at the center of controversy. 
  • The controversy mostly relates to the discretionary powers of the Governor in forming the government.
  • This warrants a constitutional restructuring of the office of the Governor.

The Centre and its Governor

  • The Drafting Committee of the Constitution insisted on omitting all references to the discretionary powers of the Governor. 
  • B.R. Ambedkar said that the Governor “is required to follow the advice of his Ministry in all matters”.
  • But, Governor is required to exercise discretion in deciding the formation of government when there is no clear post-poll majority.
  • The cases of S.R. Bommai v. Union of India, Rameshwar Prasad v. Union of India and Nabam Rebia v. Deputy Speaker provide judicial guidance to how the office of the Governor must encounter post-poll claims to form the government by staying immune to political bias.

Reasons for politicization

  • The appointment process of Governors has made the office vulnerable to the influence of the Union government. 
  • Over the years, occupants of this office have continued to look towards New Delhi for guidance. 
  • Constitutional expert A.G. Noorani cautions that a “state’s autonomy comes to naught if its people’s mandate can be defied or ignored by a central appointee.”
  • In Karnataka and Maharashtra, Governors invited the leader of the BJP when they did not have the support of the majority in the respective Legislative Assemblies. 
  • This brings into question the claims of support made by the BJP leaders to the Governors and how the Governors satisfied themselves with these claims. 
  • The swearing-in ceremony which happened with little or no public notice in Maharashtra is disappointing.

Need for restructuring

  • These actions of governors strengthen calls to review and restructure the office of the Governor.
  • The appointment and tenure of Governors need to undergo radical reform. 
  • Justice P.V. Rajamannar Committee recommended that State governments be included in the appointment process of Governors to drastically reduce their discretionary powers. 
  • There is a need to rectify the imbalance in Centre-State equations.
  • Governors have enjoyed a legal immunity on account of their sovereign functions. Supreme Court has powers to review the actions of the Governors. Any decision of the Governor can be subjected to judicial scrutiny, including the materials placed to arrive at that decision. 
  • The Westminster model of a sovereign and symbolic head of state is irrelevant to today’s times. 
  • The powers and privileges attached to the office of the Governor must be accompanied by answerability, transparency, and accountability. 
  • Governors and their offices must be scrutinized as much as any other public office.

President’s Rule

PM’s power to revoke President’s Rule

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Rule 12

Mains level : President’s Rule

To revoke President’s Rule, the government has used a special Section in the Union government’s Transaction of Business Rules, which allows for revocation of President’s Rule without Cabinet approval if the Prime Minister “deems it necessary”.

Rule 12

  • Rule 12 of the Government of India (Transaction of Business) Rules, 1961, allows the PM to depart from laid down norms at his discretion.
  • Titled “Departure from Rules”, Rule 12 says, the Prime Minister may, in case or classes of cases permit or condone a departure from these rules, to the extent he deems necessary.
  • The Cabinet can subsequently give post-facto approval for any decision taken under Rule 12.

Under what circumstances is Rule 12 used?

  • Rule 12 is usually not used to arrive at major decisions by the government.
  • However, it has been used in matters such as the withdrawal of an office memorandum or signing of MoUs in the past.
  • The last big decision taken through the invocation of Rule 12 was re-organisation of the state of Jammu and Kashmir into the UTs of Jammu and Kashmir, and Ladakh on October 31.
  • The proclamations issued by the President that day, dividing various districts between the two Union Territories, were issued under Rule 12.
  • The Cabinet gave post-facto approval to the same on November 20.

So, what happened in the case of Maharashtra?

  • At 5.47 am on Saturday, the notification revoking President’s Rule was published in the government gazette.
  • This indicated that the notification was actually signed by the President at some point earlier than that time.
  • At 7.50 am, the new chief minister and deputy chief minister were sworn in.

Why it’s controversial?

  • The invocation of Rule 12 appears to indicate that even top leaders of the union cabinet were not aware of the impending move.
  • Many top ministers were, in fact, out of Delhi, and were not available for a Cabinet meeting.

Back2Basics

Explained: President’s Rule in Maharashtra

President’s Rule

Explained: President’s Rule

Note4Students

From UPSC perspective, the following things are important :

Prelims level : President's Rule

Mains level : SR Bommai Judgment

While recommending President’s Rule in Maharashtra, Governor noted that a situation has arisen when the formation of a stable government is not possible even 15 days after the election results had been declared.

What’s the issue?

  • It has been argued that governor’s decision is based on “objective material” and not on a political whim or fancy, if one goes by the Supreme Court verdict in the 1994 S.R. Bommai case.

President’s Rule

  • President’s rule is the suspension of state government and imposition of direct central government rule in a state.

How it is imposed?

  • President’s Rule implies the suspension of a state government and the imposition of direct rule of the Centre.
  • This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.
  • Under Article 356, this move can be taken “(1) If the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution…”

How long President’s Rule can last

  • A proclamation of President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly, and stakes his claim to form a government.
  • The revocation does not need the approval of Parliament.
  • Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.
  • This six-month time-frame can be extended in phases, up to three years.

The S.R. Bommai Case

  • R. Bommai v. Union of India (1994) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues.
  • The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President’s rule to be imposed over state governments.
  • Article 356 (1) has been deliberately drafted in a narrow language by the Founding Fathers so that political parties in the Centre does not misuse it to subvert federalism, it had noted.
  • The expression used in the Article is ‘if the President is satisfied”, the court had observed.
  • In other words, the President has to be convinced of or should have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen.
  • The court had stated that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review”.

What it directed?

  • The judgment had explained that in a multi-party political system, chances are high that the political parties in the Centre and the State concerned may not be the same.
  • Article 356 cannot be used for the purpose of political one-upmanship by the Centre.
  • Hence there is a need to confine the exercise of power under Article 356[1] strictly to the situation mentioned therein which is a condition precedent to the said exercise,” the court had said.

Conditions for Prez Rule

  • Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
  • Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
  • Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
  • Where a constitutional direction of the Central government is disregarded by the state government.
  • Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
  • Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.

Fouling factors

The imposition of President’s Rule in a state would be improper under the following situations:

  • Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
  • Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
  • Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980.
  • Internal disturbances not amounting to internal subversion or physical breakdown.
  • Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
  • Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
  • Where the power is used to sort out intra-party problems of the ruling party, or for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution.

Similar precedents

  • This is not the first time President’s Rule has been imposed following an election that did not lead to government formation.
  • For instance, no party could mobilise a majority in the Bihar Assembly following elections in February 2005.
  • President’s Rule, which was imposed on March 7, 2005, lasted 262 days until November 24 . It was lifted after fresh elections in October-November.
  • A hung verdict in the J&K elections of 2002 led to the imposition of President’s Rule for 15 days, from October 18 to November 2 that year.
  • In the UP Assembly elections of 2002, no party could secure a majority. This led to the imposition of President’s Rule for 56 days, from March 3 to to May 2, 2002.

President’s Rule

Role of Governor in State govt. formation

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Hung Assembly

Mains level : Role of Governor in State govt. formation

Context

  • Usually, the moment an election is won or lost, the CM resigns and is then asked by the Governor to continue as ‘caretaker’ until a new government is in place.
  • It has been two weeks since the results of the Assembly election were announced, but no party has staked claim yet to form a government.

What is the Governor’s role in such circumstances?

  • The Governor would be expected to go as per an order of preference set out in the Sarkaria Commission recommendations, which have also been ratified by the Supreme Court.
  • By the order of preference, the Governor can invite
  1. a pre-poll alliance of parties;
  2. invite the single largest party which stakes a claim to form the government;
  3. invite a post-poll alliance of parties, with all the partner in the coalition joining the government or
  4. invite post-poll alliances of parties, with some becoming part of the government and some supporting from outside.

What happens if any of these parties is invited to form the government?

  • Once any formation is sworn in, it will need to pass the floor test, which will reveal whether the executive enjoys the confidence of the legislature as mandated by the Constitution.
  • In the floor test, the person sworn in as the CM has to prove that s/he enjoys the confidence of the House.
  • If the confidence motion fails, the Chief Minister has to resign.
  • If more than one person stake claim to form the government and the majority is not clear, the Governor has the powers to call a special session to assess who has the majority.
  • The date for the floor test is decided by the Governor in consultation with the new government.

If no government can be formed is President’s rule likely?

  • Article 356 of the Constitution provides for the imposition of President’s Rule in a state in “case of failure of the constitutional machinery in the state”.
  • As per the constitutional stipulation, it can be imposed in cases where the President, on receipt of report from the Governor of the state or otherwise, is satisfied.
  • This is in a situation in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.

When is Prez Rule likely?

  • In Maharashtra’s current case, imposition of the President’s rule is still a remote possibility.
  • According to legal experts, Governor would first need to exhaust all options and possibilities of government formation before making any such recommendation.
  • He will first have to hold consultations with all parties to examine if any one of them is in a position to cobble together the numbers required.
  • Only after he is satisfied that no party or alliance can form a stable government would he recommend imposition of President’s rule.

President’s Rule

[op-ed snap] Under the cover of President’s Rule

Note4Students

From UPSC perspective, the following things are important :

Prelims level : President's rule

Mains level : Misuse of Art 356

Abrogation of Art 370

  1. Constitution (Application to Jammu and Kashmir) Order, 2019 superseded the Order of 1954
  2. Passage of a statutory resolution in Parliament recommending the declaration of Article 370 as inoperative 
  3. Adoption of a resolution accepting the Jammu and Kashmir Reorganisation Bill, 2019 
  4. Issuance of a notification by the President declaring Article 370 inoperative. 

Problem with president rule

  1. He also suspends portions of the Constitution such as Article 3. J&K constitution has an additional proviso which says J&K’s legislature has to give its consent to any altering of its boundaries or size or name. But the Presidential proclamation suspended this.
  2. During the period, decisions that a popular regime would never make may become possible.
  3. Even suits instituted by the State against other States or the Centre under Article 131 may be withdrawn or claims against it conceded.
  4. The power of a State Assembly to ratify Constitution amendments may be exercised by Parliament.
  5. Assembly may be denied the opportunity to give its views on a proposal to alter the boundaries of the State. In the case of J&K, the consent of its legislature was mandatory, but the State Assembly’s consent was given by Parliament itself. 

Constitution and Judiciary

  1. A presidential proclamation is subject to judicial review after the Supreme Court verdict in S.R. Bommai vs. Union of India (1994). 
  2. The scope for judicial intervention is limited to the adequacy and relevance of the material on the basis of which the President believes that governance of a State cannot be carried on in accordance with the Constitution. 
  3. It said the initial exercise of the power is limited to taking over the executive and legislative functions without dissolving the Assembly. Once Parliament approves the proclamation, the Assembly may be dissolved.
  4. Courts have always emphasised that States remain ‘supreme’. They are not “mere appendages of the Centre”. There are certain functions that the States alone can do. 

Essential restraint

  1. Ensure that the power is invoked only with the objective of restoring constitutional governance in the State, and not to exercise absolute powers to change policies, laws and programmes of the state.
  2. Article 356 does not give a blanket power to the President or Parliament to alter any matter in which the political leaders and the electorate of the State have a legitimate stake.

Unless these implied limitations on the way the President or Parliament performs the functions of a State under Central rule, no State law or policy is safe.

 

back2basics

President’s Rule

The Case that changed the fate of President’s Rule

The indiscriminate use of President’s rule to thwart away the state governments who did not meet the ideology of Union led to the landmark verdict in the S.R. Bommai vs Union Of India, 1994, which curtailed the misuse of Article 356.


Article 356, what? 

Under Article 356, the President can dismiss a State Government or dissolve a State Assembly or keep it under suspended animation in the event of a failure of the constitutional machinery in that State.

Lets know the background of the case, shall we?

In the 1970s & 1980s, it almost became common practice for the central govt. to dismiss state govts led by opposition parties.

  • The Indira Gandhi regime and post-emergency Janata Party were noted for this practice.
  • Indira Gandhi’s government between 1966-1977 is known to have imposed President’ rule in 39 times (not states).
  • In 1989, Karnataka CM S.R. Bommai was denied an opportunity to test his majority in the Assembly by the Governor and his govt. was dismissed.

What do the Constitutional Experts have to say on Art. 356?

Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity.

  • Dr. B R Ambedkar had envisaged that Art. 356 shall remain the dead letter in the Indian constitution.
  • The Sarkaria Commission on central-state relations has recommended that Article 356 must be used very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state.

What was the S.R. Bommai case?

S.R. Bommai vs Union of India, delivered in March 1994, had sharply limited the constitutional power vested in the Central Government to dismiss a State government.

SC established strict guidelines for imposing President’s rule. This case laid down the conditions under which State govts may be dismissed, and mechanisms for that process.

In terms of the legality of the imposition of President’s Rule in States under Article 356, the SC in this case overruled its own precedent in the case of State of Rajasthan v Union of India 1977 case.

Let’s briefly understand the State of Rajasthan v Union of India 1977 case

  • SC held that the power of the President to impose President’s Rule is not above and beyond judicial review entirely.
  • The court might insist on substantial evidence in support of the Centre’s charges against a state if the latter accuses the Centre of acting mala fide.

The Court in the Bommai case, narrowed down the circumstances and the manner in which such powers could be exercised.

What are conditions for the valid exercise Article 356?

There was a shift in constitutional jurisprudence as the principle of federalism was part of the basic structure of the Constitution, and this principle could only be deviated from in exceptional and extraordinary circumstances, i.e. where constitutional rule was not possible in the State.

  • The majority enjoyed by the Council of Ministers(CoM) in the state shall be tested on the floor of the house and not subjectively decided by the Governor.
  • Center shall give a warning and a time-period of 1 week to the concerned state.
  • Courts cannot question the advice tendered by the CoM to the President, but court can scrutinizethe material basis of the satisfaction of President.
  • Until the proclamation is approved by the Parliament, President shall not take any irreversibleaction, i.e. he should not dissolution of assembly.
  • Courts have the power to reverse the actions of President, if the Art. 356 is used inappropriately.
  • Art. 356 shall be used sparingly, otherwise it will destroy the constitutional balance between the Center & States.
Published with inputs from Pushpendra | Image: Frontline
Subscribe
Notify of
1 Comment
Oldest
Newest Most Voted
Inline Feedbacks
View all comments