President’s Rule

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

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

President’s Rule

J&K all set for President’s rule

Note4Students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: Governor’s rule in J&K

Mains level: Salient Features of Presidents Rule


News

Governor’s rule to expire

  1. Jammu and Kashmir is all set for President’s rule in January as there were no plans to dissolve the Assembly yet.
  2. Since J&K has a separate Constitution, Governor’s rule is imposed under Section 92 for six months after an approval by the President.
  3. In case the Assembly is not dissolved within six months, President’s rule under Article 356 is extended to the State.

Centre has to decide

  1. There are no plans to dissolve the Assembly yet.
  2. The decision to hold fresh Assembly elections in the State lies with the Centre and the Election Commission.

Back2Bascis

Governor’s rule in J&K

  1. In all states of India, the state government’s failure results in President’s rule.
  2. The process is slightly more nuanced in Jammu and Kashmir where not the President’s but Governor’s rule is imposed.
  3. The Constitution of India grants special status to Jammu and Kashmir among Indian states, and it is the only state in India to have a separate Constitution and regulations specific to it.
  4. Under the provision of Section 92 of the Jammu and Kashmir Constitution, Governor’s rule is imposed for six months, but only after the consent of the President of India.
  5. The President’s rule in other states of India is imposed under Article 356 of the Constitution of India.
  6. Under the Governor’s rule, the State Assembly is either kept in suspended animation or dissolved.
  7. If it is not possible to restore the state machinery before the expiry of the six-month period, the provision is extended.
  8. The Governor’s rule was imposed on the state for the first time in March 1977, when the Congress withdrew support to National Conference (NC) government led by the late Sheikh Abdullah.
  9. Among notable differences with other states, till 1965, the head of state in Jammu and Kashmir was called Sadr-e-Riyasat, whereas in other state, the title was Governor, and head of government was called Prime Minister in place of Chief Minister in other states.

President’s Rule

[op-ed snap] Governance and the Governor

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 355, Article 156 of the Constitution, Sarkaria and M.M. Punchhi Commissions, S.R. Bommai v. Union of India & B.P. Singhal v. Union of India case

Mains level : Issues related to the discretionary powers and appointment of Governor

Note4Students

Mains Paper 2: Polity | Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

From UPSC perspective, the following things are important:

Prelims Level: Article 355, Article 156 of the Constitution, Sarkaria and M.M. Punchhi Commissions, S.R. Bommai v. Union of India & B.P. Singhal v. Union of India case

Mains Level:  Issues related to the discretionary powers and appointment of Governor


Context

Misuse of the office by some is not a justification for removing it altogether. We need proper checks

Read in Continuation with the newscard [op-ed snap] Do we need the office of the Governor? – Civilsdaily

Governor: An overseer

  1. Under the constitutional scheme, the Governor’s mandate is substantial. From being tasked with overseeing government formation, to reporting on the breakdown of constitutional machinery in a State.
  2. To maintaining the chain of command between the Centre and the State, he can also reserve his assent to Bills passed by the State Legislature and promulgate ordinances if the need arises.
  3. Further, under Article 355, the Governor, being the Central authority in a State, acts as an overseer in this regard.
  4. There are numerous examples of the Governor’s position being abused, usually at the behest of the ruling party at the Centre.

The root lies in the process of appointment itself

  1. The post has been reduced to becoming a retirement package for politicians for being politically faithful to the government of the day
  2. Consequently, a candidate wedded to a political ideology could find it difficult to adjust to the requirements of a constitutionally mandated neutral seat. This could result in bias, as appears to have happened in Karnataka
  3. A possible solution would be not to nominate career politicians and choose “eminent persons” from other walks of life
  4. Both the Sarkaria and M.M. Punchhi Commissions seem to hint at this. But this could also lead to the creation of sycophants within the intelligentsia, an equally worrisome prospect
  5. On the other hand, there are instances of politicians who have risen above partisan politics and performed their role with dignity and without fear or favor

B.P. Singhal v. Union of India

  1. This deals with interpreting Article 156 of the Constitution and the arbitrary removal of Governors before the expiration of their tenure
  2. This judgment is crucial since a fixed tenure for Governors could go quite far in encouraging neutrality and fairness in the discharge of their duties, unmindful of the dispensation at the Centre

Hung Assembly and the Governor

  1. The Governor has the task of inviting the leader of the largest party/alliance, post-election, to form the government; overseeing the dismissal of the government in case of a breakdown of the Constitution in the State; and, through his report, recommending the imposition of President’s rule.
  2. There are examples of the last two having been frequently misused to dismiss “belligerent” State governments, but this has been checked substantially by the Supreme Court through S.R. Bommai v. Union of India
  3. Following the Sarkaria Commission’s recommendations, the Court underlined that the breakdown of constitutional machinery implied a virtual impossibility, and not mere difficulty, in carrying out governance in a State.
  4. It said that while the subjective satisfaction of the President regarding such a breakdown was beyond judicial scrutiny, the material on which such satisfaction was based could certainly be analyzed by the judiciary, including the Governor’s report
  5. It reserved the power to declare this report mala fide and restore the dismissed government. The same idea can be extended in case of the Governor’s discretion in inviting a party to form the government
  6. Since the Bommai verdict allows the Supreme Court to investigate claims of mala fide in the Governor’s report, a similar extension to cover mala fide in the invitation process could be a potential solution

The Way Forward

  1. In India, the balance in power is tilted towards the Union
  2. The importance of the Governor’s position arises not from the exceptional circumstances that necessitate the use of his discretion, but as a crucial link within this federal structure in maintaining effective communication between the Centre and a State
  3. As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises, his role is often that of a neutral arbiter in disputes settled informally within the various strata of government, and as the conscience keeper of the community
  4. There is need to ensure proper checks and balances to streamline the functioning of this office
  5. However, misuse of a position of power should not serve as a justification for removing the office altogether, unless such a position has totally lost its relevance

President’s Rule

[op-ed snap] Do we need the office of the Governor?

Note4Students

Mains Paper 2: Polity| Indian Constitution- historical underpinnings, evolution, features.

From UPSC perspectives, the following things are important

Prelims Level: The GoI Act 1935, Appointment of the Governor

Mains Level: Evolution of the Post of Governor, Issues related to his discretionary powers.


Context

Role of governor

  1. Inviting the immediate majority party to form the government is perhaps a legitimate exercise of Governors constitutional discretion.
  2. However, the recent Karnataka elections have raised questions about the Governor’s discretionary powers following several open criticisms about the office bearer
  3. If we want to put an end to the continuous misuse of the Raj Bhavan for partisan political ends in a manner that threatens both federalism and democracy, we have to rethink the role of the Governor in the constitutional scheme

Where does the flaw lie?

  1. Some have suggested that the post of the Governor be reserved for non-political appointees, and still, others have urged the Supreme Court to lay down the law on how the Governor ought to act when an election yields a fractured verdict
  2. All of these, however, are patchwork solutions that miss the point
  3. For that, it is important to understand the origins of the office in the colonial British regime

Provisions in Govt. of India Act, 1935

  1. Through the course of the early 20th century, the Indian nationalist movement managed to extract gradual and incremental reforms towards responsible government from the British rulers
  2. These reforms culminated in the Government of India Act, 1935 which established provincial legislative assemblies elected from a limited franchise
  3. In order to ensure that overriding power remained with the British, the Act retained the post of Governor (a holdover from the old, “diarchy” system), and vested him with “special responsibilities” that, in essence, allowed for intervention at will

The Critique of the Post

  1. In a searing critique, K.T. Shah (who was later one of the most articulate members of the Constituent Assembly), wrote that the Governor would inevitably be biased in his functioning and his actions would remain at odds with those of popularly elected Ministers
  2. During CA debates, it was pointed out that the Articles dealing with the powers of the Governor were almost verbatim reproductions of the 1935 Act.

Defenders of the office raised two broad arguments:

  1. First, that there was a dearth of competent legislators in the States
  2. Second that a certain amount of centralization of power was necessary in a nascent state such as India

The way forward: Specify the rules

  1. The idea of the Governor standing as a bulwark against secessionism, or providing legislative expertise to States otherwise starved of it, are no longer valid justifications
  2. On the other hand, the Governor’s interference with the democratic process is both real and continuing
  3. As history shows, the solution is not to tinker around the edges or hope that the courts will come to our rescue

President’s Rule

What is the S.R. Bommai case, and why is it quoted often?

Note4Students

Mains Paper 2: Polity| Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these.

From UPSC perspectives, the following things are important

Prelims Level: Particulars of the SR Bommai Case Judgement, Art. 356

Mains Level: Issues about the use and misuse of Art. 356. (Attached story will help understand the issue better)


News

Who was S.R. Bommai?

  1. S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka between August 13, 1988 and April 21, 1989
  2. His government was dismissed on April 21, 1989, under Article 356 of the Constitution and President’s Rule was imposed, in what is then a mostly common mode to keep Opposition parties at bay
  3. The dismissal was on grounds that the Bommai government had lost majority following large-scale defections engineered by several party leaders of the day
  4. Then Governor P. Venkatasubbaiah refused to give Bommai an opportunity to test his majority in the Assembly despite the latter presenting him with a copy of the resolution passed by the Janata Dal Legislature Party

What happened then?

  1. Bommai went to court against the Governor’s decision to recommend President’s Rule
  2. First, he moved the Karnataka High Court, which dismissed his writ petition
  3. Then he moved the Supreme Court

What did the Supreme Court do?

  1. The case, which would go on to become one of the most cited whenever hung Assemblies were returned, and parties scrambled to form a government, took almost five years to see a logical conclusion
  2. On March 11, 1994, a nine-judge Constitution Bench of the Supreme Court issued the historic order, which in a way put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions

What did the judgment say?

  1. The verdict concluded that the power of the President to dismiss a State government is not absolute
  2. The verdict said the President should exercise the power only after his proclamation (imposing his/her rule) is approved by both Houses of Parliament
  3. Till then, the Court said, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly
  4. The dissolution of Legislative Assembly is not a matter of course
  5. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation

What happens if the Presidential proclamation is not approved by the Parliament?

  1. In case both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, the government which was dismissed revives
  2. The Legislative Assembly, which may have been kept in suspended animation gets reactivated
  3. Also, the Court made it amply clear that a Presidential Proclamation under Article 356 is subject to judicial review.

What is the significance of the S.R. Bommai vs Union of India case?

  1. The case put an end to the arbitrary dismissal of State governments by a hostile Central government
  2. And the verdict also categorically ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor, who is often referred to as the agent of the Central government

When the verdict’s impact was first seen?

  1. In one of the first instances of the impact of the case, the A.B. Vajpayee government in 1999 was forced to reinstate a government it dismissed
  2. The Rabri Devi government, which was sacked on February 12, 1999, was reinstated on March 8, 1999, when it became clear that the Central government would suffer a defeat in the Rajya Sabha over the issue
  3. And later whenever the case of a hung Assembly, and the subsequent exercise of government formation, came up, the Bommai case would be cited, making it one of the most quoted verdicts in the country’s political history

President’s Rule

Governor’s discretion cannot be arbitrary or fanciful: SC Constitution Bench

Note4students

Mains Paper 2: Polity | Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies

From UPSC perspective, the following things are important:

Prelims level:  Art. 180(1), Powers and discretion of Pro-tem Speaker

Mains level: Frequent issues concerned with Hung Assembly


News

Appointing a pro-tem Speaker

  1. Article 180 (1) of the Constitution gives the Governor the power to appoint a pro-tem Speaker
  2. The Article says that if the chair of the Speaker falls vacant and there is no Deputy Speaker to fill the position, the duties of the office shall be performed “by such member of the Assembly as the Governor may appoint for the purpose”
  3. The Supreme Court ordered the appointment of a pro-tem Speaker to conduct a floor test to decide the majority in the hung Karnataka Assembly

Article 180 (1) is silent about the extent to which the Governor can use his discretion

  1. The Governor’s appointment of Mr. Bopaiah is being defended by quoting Article 163(2) of the Constitution
  2. The latter part of this Article mandates that “the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion

What SC ruled out in Nabam Rebia Judgement, 2016

  1. The Rebia case dealt with the problem of the Arunachal Pradesh Governor advancing the date for the sixth Assembly session in the northeastern State.
  2. The five-judge Constitution Bench of the Supreme Court led by then Chief Justice J.S. Khehar in the Nabam Rebia judgment of 2016 ruled that Article 163 does not give Governors a “general discretionary power” as is often misunderstood
  3. The area for the exercise of his (Governor) discretion is limited
  4. Even this limited area, his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution
  5. In his speech on the constitutional role of Governors, Dr. B.R. Ambedkar described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State” 

Issues with the Speaker’s Appointment

  1. One of the issues which may arise is whether or not the discretion of the Governor can be judicially reviewed by the Supreme Court
  2. But a Constitution Bench judgement in 2006 in the Rameshwar Prasad Case has held that the “immunity granted to the Governor under Article 361 (1) does not affect the power of the Court to judicially scrutinise the attack made to the proclamation issued under Article 361(1) of the Constitution of India on the ground of mala fides or it being ultra vires”

Justified the Powers of Pro-tem Speaker

  1. The powers of a pro-tem Speaker are wide
  2. The Bombay High Court in its 1994 judgment in the Surendra Vassant Sirsat Case holds that a pro-tem is Speaker of the House “for all purposes with all powers, privileges and immunities” until the Speaker is elected
  3. The Odisha High Court also agreed in the Godavari Misra versus Nandakisore Das, Speaker, Orissa Legislative Assembly case when it said the powers of the Speaker pro-tem are co-extensive with the powers of elected Speaker
  4. The proceedings of the Legislature chaired by the Speaker pro-tem are as much protected under the Constitution as those chaired by the elected Speaker

President’s Rule

The Problem of Hung Assembly

Note4students

Mains Paper 2: Polity | Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies

From UPSC perspective, the following things are important:

Prelims level: Recommendations of Sarkaria and Punchhi Commissions

Mains level: The newscard discusses the solution over the issue of frequent instances of hung assembly due to lack of clear majority. The Supreme Court Ruling also serves as a great solution for this concern


Context

Frequent instances of hung assembly

  1. The growing instances of a hung assembly are on the rise, with the recent example of Karnataka Assembly mandate where there is lack of clear majority
  2. The Constitution of India does not mandate any procedure to be followed by the Governor, in case of hung assembly
  3. This gives scope for the Governor to use his discretion. She/he has the discretion to invite any leader to form the government
  4. But she/he must make a choice keeping in mind the leader’s ability to prove his majority on the floor of the House, and to provide a stable government
  5. Ironically the Governor has no option except to invite the new coalition, which had a “clear majority” in the House

The peculiarity of recent cases

  1. Even though a party did not have a majority in the Assembly, and wasn’t the single-largest party either.
  2. But it still returned to power after the post-poll alliance
  3. Example: Goa, Manipur, Meghalaya

Recommendations of the Sarkaria Commission

  1. The central government set up the Justice R S Sarkaria Commission in June 1983 to examine the relationship and balance of power between state and central governments
  2. The Commission, which dealt with the role of Governors, suggested that in choosing a Chief Minister, the Governor should be guided by the following principles:
  • The party or combination of parties that command the widest support in the Legislative Assembly should be called to form the government
  • The Governor’s task is to see that a government is formed — and not to try to form a government that will pursue policies that he approves
  • If no party has a majority, the Governor has to invite: a) a pre-poll alliance, b) the largest single party that is able to gain majority support, c) a post-election coalition that has the required members, d) a post-election coalition in which partners are willing to extend outside support

3. The Commission recommended that the Chief Minister must seek a vote of confidence in the Assembly within 30 days of taking over

4. It also said the Governor should not risk determining the issue of majority support outside the Assembly, and that the prudent course would be to have the claims tested on the floor of the House

Recommendations of the Punchhi Commission

  1. A Commission headed by former Chief Justice of India M M Punchhi was set up in April 2007 to take a fresh look at the roles and responsibilities of governments at various levels, and the relations between them
  2. The Commission recommended that there should be clear guidelines for the appointment of Chief Ministers so that there was some sort of regulation on the discretionary power of the Governor
  3. It said that a pre-poll alliance must be treated as one political party, and laid down the order of precedence that the Governor must follow in case of a hung House:
  • Group with the largest pre-poll alliance commanding the largest number;
  • Single largest party with support of others;
  • Post-electoral coalition with all parties joining the government;
  • Post-electoral alliance with some parties joining the government, and the remaining, including Independents, supporting from outside

Way Forward: When Supreme Court backed Governor’s discretion in Goa

  1. The opposition contended that since there was no pre-poll alliance, the Governor should have first asked the single largest party if it was in a position to form the government
  2. The SC ruled that-
  • If the single largest party has the majority, then no such question has to arise
  • But when no political party is in majority, then it is the bound duty of the Governor to see who can form the government
  • If nothing happens, then the Governor is duty-bound to call the leader of the single largest party but if someone goes to the Governor with a list of supporters, then it is a different issue altogether

3. The Supreme Court also ordered a floor test, saying that the “instant sensitive and contentious issue can be resolved by a simple direction, requiring the holding of a floor test at the earliest

4. The holding of the floor test would remove all possible ambiguities, and would result in giving the democratic process, the required credibility

President’s Rule

Speaker facing disqualification can’t disqualify MLAs, says SC

  1. News: A Speaker should refrain from deciding the disqualification of MLAs for defection under the Tenth Schedule of the Constitution if he/she him/herself is facing the prospect of removal, the Supreme Court has held
  2. A Constitution Bench observed that the ruling was a safeguard against a Speaker using the disqualification proceedings of legislators for his/her own political ends
  3. A Speaker, under the threat of losing his position, may choose to disqualify the MLAs to alter the composition of the House in his/her favour
  4. Therefore, the above was made constitutionally impermissible under Article 179 of the Constitution

President’s Rule

SC quashes Arunachal Governor’s order

  1. News: Supreme Court unanimously quashed Arunachal Pradesh Governor’s decision to advance the Assembly session from January 14, 2016 to December 16, 2015
  2. The Governor’s move had triggered political unrest and culminated in the declaration of President’s rule on January 26
  3. First time SC used its powers of judicial review to restore a government when its successor government is still in place
  4. Future: The Bench directed the immediate imposition of status quo ante as on December 15, 2015
  5. This means that the present government headed by Khaliko Pul would have to step down to make way for the return of Congress-led Nabam Tuki government to power
  6. Context: The Arunachal Pradesh Governor had decided in December to topple Nabam Tuki’s government

President’s Rule

Second floor test a possibility: SC

  1. Context: SC would separately hear petition filed by disqualified MLAs
  2. SC: After hearing the petition, if it favours disqualified MLAs, there will be second floor test
  3. Argument: MLAs were disqualified after proclamation of President’s Rule but Speaker has no authority to disqualify after President’s rule
  1. Context: SC would separately hear petition filed by disqualified MLAs
  2. SC: After hearing the petition, if it favours disqualified MLAs, there will be second floor test
  3. Argument: MLAs were disqualified after proclamation of President’s Rule but Speaker has no authority to disqualify after President’s rule

President’s Rule

President’s Rule lifted, Rawat to be CM again

  1. Context: Former CM, Mr. Rawat, has won floor test conducted by SC
  2. The principal secretary presented the result of vote to SC
  1. Context: Former CM, Mr. Rawat, has won floor test conducted by SC
  2. The principal secretary presented the result of vote to SC

President’s Rule

SC appoints official for floor test

  1. Context: SC has given order to appoint Principal Secretary to conduct trust vote
  2. Aim: to conduct vote in objective and neutral manner
  3. Principal Secretary: An official of Legislative and Parliamentary Affairs
  4. Criticism: No confidence of neutrality as he is from staff of speaker
  1. Context: SC has given order to appoint Principal Secretary to conduct trust vote
  2. Aim: to conduct vote in objective and neutral manner
  3. Principal Secretary: An official of Legislative and Parliamentary Affairs
  4. Criticism: No confidence of neutrality as he is from staff of speaker

President’s Rule

Advantage Rawat as SC bars Congress rebels from voting

  1. Context: SC ordered that disqualified member can’t give their votes during floor test
  2. The members were disqualified by the speaker under the 10th schedule of constitution
  3. Allegation: Horse trading
  1. Context: SC ordered that disqualified member can’t give their votes during floor test
  2. The members were disqualified by the speaker under the 10th schedule of constitution
  3. Allegation: Horse trading

President’s Rule

Floor test in Uttarakhand on May 10

  1. Context: Floor test will be conducted in Uttarakhand on 10th May
  2. This is according to the Supreme court’s order to end controversy over proclamation of President’s Rule
  3. No status quo ante: When President’s rule is lifted, Mr. Rawat would not automatically be restored as CM
  4. Earlier: HC ordered to restore Former CM before Floor test
  5. If Former CM fails to prove majority, Governor can call leader of majority system
  1. Context: Floor test will be conducted in Uttarakhand on 10th May
  2. This is according to the Supreme court’s order to end controversy over proclamation of President’s Rule
  3. No status quo ante: When President’s rule is lifted, Mr. Rawat would not automatically be restored as CM
  4. Earlier: HC ordered to restore Former CM before Floor test
  5. If Former CM fails to prove majority, Governor can call leader of majority system

President’s Rule

Centre ‘seriously considering’ floor test

  1. Context: Govt has taken the SC’s suggestion on Floor Test
  2. Earlier: Govt had given challenge to Uttarakhand HC’s decision on floor test
  3. Former CM: Requested SC to specify that Floor test is on a vote of Confidence Motion
  4. AG: Floor test will be opportunity to both the parties to prove majority
  1. Context: Govt has taken the SC’s suggestion on Floor Test
  2. Earlier: Govt had given challenge to Uttarakhand HC’s decision on floor test
  3. Former CM: Requested SC to specify that Floor test is on a vote of Confidence Motion
  4. AG: Floor test will be opportunity to both the parties to prove majority

President’s Rule

SC favours trust vote in Uttarakhand

  1. Context: SC suggested Govt to conduct the floor test by lifting the President’s Rule in Uttarakhand
  2. Why? To end the Constitutional crisis
  3. SC: Floor test is the ultimate test to decide the majority
  4. Floor test & President’s cannot be at a same time
  5. So, suggesting lifting President’s rule for three day
  1. Context: SC suggested Govt to conduct the floor test by lifting the President’s Rule in Uttarakhand
  2. Why? To end the Constitutional crisis
  3. SC: Floor test is the ultimate test to decide the majority
  4. Floor test & President’s cannot be at a same time
  5. So, suggesting lifting President’s rule for three day

President’s Rule

Who can question authority of the Speaker, asks SC

  1. Context: SC questioned Uttarakhand Govt on questioning the speaker’s authority
  2. Background: Money bill was passed by Uttarakhand government on March 18
  3. Govt: Insisted the non passage of Money bill
  4. SC: No one can question the Speaker’s authority as assembly records show that Money bill was passed
  5. State emergency is continued in Uttarakhand, so as to maintain status quo
  1. Context: SC questioned Uttarakhand Govt on questioning the speaker’s authority
  2. Background: Money bill was passed by Uttarakhand government on March 18
  3. Govt: Insisted the non passage of Money bill
  4. SC: No one can question the Speaker’s authority as assembly records show that Money bill was passed
  5. State emergency is continued in Uttarakhand, so as to maintain status quo

President’s Rule

Uttarakhand HC sets aside President’s Rule

  1. Context: The Uttarakhand High Court quashed the Union government’s order imposing President’s Rule on the State
  2. HC: The situation must be viewed on a larger canvas of democracy, federalism and the rule of law
  3. The soul of the matter is whether it is open to the Central govt to get rid of State govts

President’s Rule

President’s decision open to judicial review: HC

  1. Context: Uttarakhand HC Hearing on a petition challenging the imposition of President’s Rule
  2. Govt: President took the decision to impose A 356 in his political wisdom
  3. President’s understanding of the material before him would be different from that of the court
  4. HC: People go wrong, be it President or the judges & there can’t be ‘absolutism’ in a decision
  5. Legitimacy of the inference drawn by President is open to Judicial Review
  1. Context: Uttarakhand HC Hearing on a petition challenging the imposition of President’s Rule
  2. Govt: President took the decision to impose A 356 in his political wisdom
  3. President’s understanding of the material before him would be different from that of the court
  4. HC: People go wrong, be it President or the judges & there can’t be ‘absolutism’ in a decision
  5. Legitimacy of the inference drawn by President is open to Judicial Review

President’s Rule

Imposition of Central rule undemocratic: SC

  1. Context: Uttarakhand High Court, hearing the case on the imposition of President’s rule in the State
  2. HC: Questioned the need for the Central government to intervene in State matters, unless in extraordinary cases
  3. Floor test: The decision on whether Govt would topple or stay could have been decided by the floor test
  4. Haste: Centre has ‘cut at the roots of democracy’ by showing haste in imposition of President’s rule
  1. Context: Uttarakhand High Court, hearing the case on the imposition of President’s rule in the State
  2. HC: Questioned the need for the Central government to intervene in State matters, unless in extraordinary cases
  3. Floor test: The decision on whether Govt would topple or stay could have been decided by the floor test
  4. Haste: Centre has ‘cut at the roots of democracy’ by showing haste in imposition of President’s rule

President’s Rule

President’s rule in Uttarakhand

  1. News: The Centre brought Uttarakhand under President’s rule, as per Article 356 of the Constitution
  2. The Assembly has been placed under suspended animation on the recommendation of the Union Cabinet
  3. Reason: It has cited constitutional breakdown in the wake of a rebellion in the ruling Congress
  4. There were allegations of horse trading against the ruling govt. along with controversial passing of Appropriation Bill by speaker
  1. News: The Centre brought Uttarakhand under President’s rule, as per Article 356 of the Constitution
  2. The Assembly has been placed under suspended animation on the recommendation of the Union Cabinet
  3. Reason: The Union Cabinet has cited constitutional breakdown in the wake of a rebellion in the ruling Congress
  4. There were allegations of horse trading against the ruling govt. along with controversial passing of Appropriation Bill by speaker

President’s Rule

SC declines to intervene in Arunachal political impasse

  1. Context: Supreme court is hearing the constitutional validity of President’s rule in Arunachal Pradesh
  2. News: The SC declined to intervene in the Arunachal Pradesh political controversy
  3. Centre has indicated that it was in favour of withdrawing President’s Rule in the State to make way for a new govt
  4. Reason: Centre has argued that there cannot be a constitutional vacuum just because the SC is hearing the case
  1. Context: Supreme court is hearing the constitutional validity of President’s rule in Arunachal Pradesh
  2. News: The SC declined to intervene in the Arunachal Pradesh political controversy
  3. Centre has indicated that it was in favour of withdrawing President’s Rule in the State to make way for a new govt
  4. Reason: Centre has argued that there cannot be a constitutional vacuum just because the SC is hearing the case

President’s Rule

Can Governor intervene in Speaker’s disqualification powers?

  1. Context: SC was questioning the Governor’s interventions in the wake of Speaker disqualifying rebel Congress MLAs
  2. Court’s Question: How can the Governor take away the constitutional powers of the Speaker to disqualify lawmakers on the grounds of defection?
  3. Court’s Observation: Governor has no role to play in issues prescribed in Tenth Schedule of Constitution
  1. Context: SC was questioning the Governor’s interventions in the wake of Speaker disqualifying rebel Congress MLAs
  2. Court’s Question: How can the Governor take away the constitutional powers of the Speaker to disqualify lawmakers on the grounds of defection?
  3. Court’s Observation: Governor has no role to play in issues prescribed in Tenth Schedule of Constitution

President’s Rule

Was it discretion or mere whim, SC asks Governor

  1. Context: Governor used his constitutional discretion to advance the 6th session of the Arunachal Pradesh Assembly by over a month
  2. Court’s Question: Whether it was backed by sound constitutional principles or based on a mere whim
  3. Constitutional Principles: Under Art. 174(1), Governor can summon the house, but the question before the bench is whether this power can be used unilaterally by Governor
  4. The other question before the bench is that whether Governor is bound by aid and advice of Counicl of ministers before advancing the assembly session
  1. Context: Governor used his constitutional discretion to advance the 6th session of the Arunachal Pradesh Assembly by over a month
  2. Court’s Question: Whether it was backed by sound constitutional principles or based on a mere whim
  3. Constitutional Principles: Under Art. 174(1), Governor can summon the house, but the question before the bench is whether this power can be used unilaterally by Governor
  4. The other question before the bench is that whether Governor is bound by aid and advice of Counicl of ministers before advancing the assembly session

President’s Rule

Governor cannot pre-empt CM’s powers: court

  1. Context: SC hearing on the President’s rule in Arunachal Pradesh
  2. Issue: The court is looking into whether there was any relevant material to justify the imposition of emergency in the state by the President
  3. Observation: The Governor cannot pre-empt the powers exclusively granted by the Constitution to the Chief Minister and his Council
  4. The Governor should use his powers in a fair and limited manner for the sake of survival of democracy
  1. Context: SC hearing on the President’s rule in Arunachal Pradesh
  2. Issue: The court is looking into whether there was any relevant material to justify the imposition of emergency in the state by the President
  3. Observation: The Governor cannot pre-empt the powers exclusively granted by the Constitution to the Chief Minister and his Council
  4. The Governor should use his powers in a fair and limited manner for the sake of survival of democracy

President’s Rule

Supreme Court recalls notice to Arunachal Pradesh Governor

  1. Just a few days after ordering Arunachal Pradesh Governor J.P. Rajkhowa to respond why he recommended President’s rule in the sensitive border State, the SC recalled the order.
  2. The turn of events was triggered by Attorney-General, for the Centre, drawing the Bench’s attention to Article 361 (1) of the Constitution.
  3. This gives the President and the Governor protection from legal action.
  4. Under the Article, both the President and the Governor of a State “shall not be answerable to any court” for acts done in performance of their powers and duties.

Concedes he has total immunity for acts done in official capacity.

  1. Just a few days after ordering Arunachal Pradesh Governor J.P. Rajkhowa to respond why he recommended President’s rule in the sensitive border State, the SC recalled the order.
  2. The turn of events was triggered by Attorney-General, for the Centre, drawing the Bench’s attention to Article 361 (1) of the Constitution.
  3. This gives the President and the Governor protection from legal action.
  4. Under the Article, both the President and the Governor of a State “shall not be answerable to any court” for acts done in performance of their powers and duties.

President’s Rule

Central rule in Arunachal is in national interest: Govt.

  1. Recurrent insurgency, Chinese claims, a communal Chief Minister and a document signed by a “majority” 34 MLAs urging for President’s rule in Arunachal Pradesh are factors listed by the Centre.
  2. To justify the proclamation of emergency in the sensitive border State on Republic Day.
  3. The Centre said President’s rule was imposed on Arunachal Pradesh in the interest of the country.
  4. The country cannot afford a whiff of instability in the State.
  5. Which has seen recurrent insurgency as well as attempts by China to claim large parts of its territory.

In a 316-page counter-affidavit filed in Supreme Court, Ministry of Home Affairs cites political stability is imperative in the border state.

  1. Recurrent insurgency, Chinese claims, a communal Chief Minister and a document signed by a “majority” 34 MLAs urging for President’s rule in Arunachal Pradesh are factors listed by the Centre.
  2. To justify the proclamation of emergency in the sensitive border State on Republic Day.
  3. The Centre said President’s rule was imposed on Arunachal Pradesh in the interest of the country.
  4. The country cannot afford a whiff of instability in the State.
  5. Which has seen recurrent insurgency as well as attempts by China to claim large parts of its territory.

President’s Rule

Raj Bhavan dharma: Constitutional duty of governors

  1. The fundamental duty of a governor is to prevent genuine constitutional crises.
  2. They have to perform the dual role of being representative of Union at state and being constitutional head of state with utmost sincerity.
  3. The ruling of S.R. Bommai vs Union of India laid down specific prerequisites for the imposition of Article 356.
  4. The first being a test of the ruling party’s majority on the floor of the House.
  5. To realize the goal of cooperative rather than obstructive federalism, governors have to act in accordance with the norms of constitutional morality.

Governors are expected to rise above party positions and proclivities, not to magnify them.

  1. The fundamental duty of a governor is to prevent genuine constitutional crises.
  2. They have to perform the dual role of being representative of Union at state and being constitutional head of state with utmost sincerity.
  3. The ruling of S.R. Bommai vs Union of India laid down specific prerequisites for the imposition of Article 356.
  4. The first being a test of the ruling party’s majority on the floor of the House.
  5. To realize the goal of cooperative rather than obstructive federalism, governors have to act in accordance with the norms of constitutional morality.

President’s Rule

SC issues notice to Centre on Arunachal issue

  1. The SC sought response from the Centre and AP Governor J.P. Rajkhowa to furnish relevant material backing their claim.
  2. The claim should establish that there has been a failure of constitutional machinery in the sensitive border State.
  3. Congress petition is demanding records culminating in the Union Cabinet’s recommendation for a proclamation of President’s Rule.
  4. Fali Nariman argued that it is only when constitutional governance becomes an ‘impossibility‘ that proclamation under Article 356 is resorted to.
  1. The SC sought response from the Centre and AP Governor J.P. Rajkhowa to furnish relevant material backing their claim.
  2. The claim should establish that there has been a failure of constitutional machinery in the sensitive border State.
  3. Congress petition is demanding records culminating in the Union Cabinet’s recommendation for a proclamation of President’s Rule.
  4. Fali Nariman argued that it is only when constitutional governance becomes an ‘impossibility‘ that proclamation under Article 356 is resorted to.

President’s Rule

Dilli Pradesh : President’s rule in Arunachal

  1. While devolution of an increased share of Central taxes and removal of overbearing institutions like the Planning Commission were consistent with the cooperative federalism.
  2. President’s rule goes against the grain of cooperative federalism.
  3. The pattern involves dissidence within the ruling party, the opposition joining hands with the rebels, confusion over the likelihood of a floor test, and the Governor intervening in a partisan manner.
  4. Undoubtedly, there is a constitutional impasse because six months have elapsed since the last time the Arunachal Pradesh Assembly met.
  5. That itself is a valid ground for Central rule.
  6. But events were manipulated in such a way that the divided legislature never got an opportunity to meet and test the government’s majority.
  7. Gauhati High Court ruled that the Governor was justified in advancing the session by acting on his own discretion if he had reason to believe that the Chief Minister and the Speaker were stalling a particular motion.
  8. Same constitutional question is now before the supreme court constitutional bench.

There are clearly laid out procedures to settle disputes over House majority and  constitutional heads ought to stay away from political manipulations.

  1. While devolution of an increased share of Central taxes and removal of overbearing institutions like the Planning Commission were consistent with the cooperative federalism.
  2. President’s rule goes against the grain of cooperative federalism.
  3. The pattern involves dissidence within the ruling party, the opposition joining hands with the rebels, confusion over the likelihood of a floor test, and the Governor intervening in a partisan manner.
  4. Undoubtedly, there is a constitutional impasse because six months have elapsed since the last time the Arunachal Pradesh Assembly met.
  5. That itself is a valid ground for Central rule.
  6. But events were manipulated in such a way that the divided legislature never got an opportunity to meet and test the government’s majority.
  7. Gauhati High Court ruled that the Governor was justified in advancing the session by acting on his own discretion if he had reason to believe that the Chief Minister and the Speaker were stalling a particular motion.
  8. Same constitutional question is now before the supreme court constitutional bench.

President’s Rule

Pranab gives assent to Central rule in Arunachal Pradesh

  1. The Governor [Jyoti Prasad Rajkhowa] has been sending multiple reports that even the Raj Bhavan was not safe and there was no law and order in the State.
  2. The political turmoil in the state is set to deepen inside Parliament with the Congress determined to stall the ratification of President’s Rule in the State.
  3. A proclamation of President’s Rule needs to be ratified in both Houses of Parliament within 2 months of notification or whenever the next session of Parliament is held.
  4. This decision of the NDA-led Central government is an attempt to sabotage the Constitutional mandate, which is a threat to democracy.

President signed on the dotted line after being satisfied that the law and order situation in the border State was sensitive to this uncertainty in government.

  1. The Governor [Jyoti Prasad Rajkhowa] has been sending multiple reports that even the Raj Bhavan was not safe and there was no law and order in the State.
  2. The political turmoil in the state is set to deepen inside Parliament with the Congress determined to stall the ratification of President’s Rule in the State.
  3. A proclamation of President’s Rule needs to be ratified in both Houses of Parliament within 2 months of notification or whenever the next session of Parliament is held.
  4. This decision of the NDA-led Central government is an attempt to sabotage the Constitutional mandate, which is a threat to democracy.

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
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