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AN UNDERSTANDING OF PRESIDENT’S RULE UNDER ART 356 and WHAT THE JUDICIARY CAN DO?
It was barely 2 days ago that the Governor of the State of Maharashtra, Mr. Bhagat Singh Koshyari submitted his recommendation and Presidential rule was imposed in the State for the third time, in its 59 years of history. This comes after the parties of the State failed to prove a majority in the State Legislative Assembly.
What does President’s Rule under Article 356(1) mean?
The mere words of the Article speak a lot of the principles of federalism adopted by our nation. Through the teachings of the American philosopher K.C Wheare, federalism essentially consists of three main essentials: Division of power amongst different levels, the existence of a general government at the central level and a regional government at the unitary levels and the fact that each of the units must be independent and coordinated, in terms of their powers, functions, and discharge of duties.
While India is a deemed to be a federal country, in the case of State of Haryana v. State of Punjab and Anr [2002 AIR SC 303], the Supreme Court observed that India has for itself what can be termed as a “semi-federal system of Government” and the same has been derived and adopted from the Indian Constitution.
This form of President’s rule is a type of Emergency that is known as Emergency due to failure of Constitutional Machinery. It is one such circumstance where the principles of federalism fade away and the powers of the Central government of the country become more centralized. Such centralization of power is one of the ways our Constitution provided a mechanism for the adherence of its provisions to be kept in check. It is no doubt that the Constitution is the supreme governing legislation of the nation and it is necessary that every unit, though independent works under the same. And in case of failure to do so, there are consequences.
Now what happens generally in imposition of President’s rule under Art 356, is that the Governor of the respective State, when it is believed that the State can no longer function according to the provisions of the Constitution, sends a report to the President regarding the same. If on receipt of the report, the President is satisfied with the same, the under Art 356(1)(a) of the Indian Constitution the President may through the proclamation assume to himself all of the power of the that respective State Government.
These powers include all or any of the functions of the Government of the State or the powers that have been vested in Governor, or any other such authority, except for that of the State Legislature. Those are powers that are outside of the ambit of the President.
Under Art 356(1)(b), the President has the power to declare that all of the functions of the State Legislature shall be carried out by the and under the sole authority of the Parliament of the country. And under Art 356(1)(c), the President is given the power to make any such incidental and consequential provisions that appear to him/her to be necessary for achieving the desired objectives of the Proclamation, which includes the capacity of suspending the operation of certain provisions in the State which may relate to any authority or individual.
Keeping in mind the division of powers as provided by Montesquieu, nothing gives power to the President to assume to himself or any other such authority, the powers of the High Court of the State or suspend provisions regarding the same. Such a proviso ensures that a system of checks and balances is kept in place, and not all of the powers regulated by the Constitution are in the hands of the Central Executive.
A case that can be referred to understand the imposition of such a President’s rule better can be the case of State of Rajasthan v. Union of India, [(1977) 3 SCC 592]. A backstory into understanding the case better would be when the elections were held in the March of 1977, BJP secured what some may call an overwhelming majority in the House of the People i.e. Lok Sabha. Yet, the NCP was continuing to be power in several States. Keeping in mind the rejection of the Congress Party at the central level, the then Union Minister, addressed 9 particular states in a letter – Bihar, Uttar Pradesh, Himachal Pradesh, Haryana. Madhya Pradesh, Orissa, Punjab, West Bengal and Haryana, asking them to advise each of their respective Governors to dissolve their Legislative Assemblies and gather the choice of the people again. The state of Rajasthan, Madhya Pradesh, Punjab, Bihar, Orissa and Himachal Pradesh filed a suit against the Union contesting the same, and praying for essentially 2 things – firstly, that the letter of the Union Home Minister in itself was illegal and secondly, an interim injunction restraining the Central Government from resorting to the implementation and proclamation of Art. 356 in the State.
Regarding the same, Justice Fazal Ali put forward that the exercise of Article 356 by the President of India is a matter of political nature and it is wholly dependent on the advice received by the President from the Council of Ministers. They are the best judges of the same and if after an overall assessment of all of the factors and the situation, the Council of Ministers in their political wisdom, tender a certain advice to the President, then the Courts have no authority to enter into such an arena and it lies beyond judicial scrutiny.
Thus, in this case, it can be noticed that regarding the aspects and basis of the satisfaction of the President with regards to the implementation of President’s Rule, the Judiciary by itself took a backseat and observed the same to be outside of the capacity of the organ.
Next, let us look at the case of S.R Bommai v. Union of India, [(1994) 3 SCC 1], which played a major role in the case mentioned above. The facts of the case are as follows, the Governor of the state of Karnataka submitted a report to the President that there were several instances of difference of opinion as well as defections in and from the existing ruling party. The Governor also put forward that the then Chief Minister of the State, S.R Bommai had failed to call in for the formation of a majority in the State’s Legislative Assembly, which was inappropriate and not in accordance with the provisions of the Constitution, and thus the State needed to be brought under the President’s rule. The Chief Minister and Law Minister met on the respective day to summon the State Assembly to prove the requisite confidence prevailing in his government. The same was forwarded to the President of the country. On the same day, the Governor sent a report to the President informing the same that the CM of the State had lost the confidence of the majority in the House, and requested a proclamation under Art. 356 to impose President’s rule, the same of which was eventually granted.
This judgement played a vital role in clearing up doubts regarding the judiciary’s role in proclamations made under Art.356 by the President. The Hon’ble Supreme Court held that the satisfaction of the President in declaring emergency under Art.356 is outside the scope of judicial review and cannot be brought under the same. Nevertheless, the grounds upon which such satisfaction is achieved can very well be brought under the purview of judicial review, if it is determined that the same has been obtained under malafide or illegal means or has been obtained through the abuse or fraud of power along with if the grounds are found to be irrelevant or irrational. And the High Court of that respective state along with the Supreme Court has the power to strike down the proclamation if made on the following basis. This case is also known for laying down several guiding principles regarding State Emergency with respect to the State Legislatures and other proper grounds upon which such emergency can be declared.
Finally, let us take a look at another case, Rameshwar Prasad and Others v. Union of India [AIR 2006 SC 980]. In this case, the dissolution of the state legislative Assembly of the State of Bihar was ordered even before its commencement through its first meeting for it was anticipated that several attempts were being made to form a majority through illegal means. The constitutional validity of the same was challenged and a petition was brought forward to the Apex Court.
Regarding the same, the Hon’ble Supreme Court observed that the notification ordering such dissolution was unconstitutional. And that the Governor had clearly and misled the Council of Ministers at the Union level which ultimately led to said proclamation being made by the President.
In this case, it can be noticed that the Supreme Court kept in mind the judgment delivered in the case of S.R Bommai, and emphasized, that though the satisfaction of the President is outside the capacity of the Judiciary, the basis for the proclamation and the grounds on which such satisfaction is gained has the capability of being judicially reviews. And as had occurred in this case, it was analyzed by the Court and declared to be unjust and unconstitutional.
What we see is that the Judiciary in itself understands its powers and the boundaries within which such power lies. With regards to the implementation of State Emergency, the Judiciary does hold the power to interfere with the grounds or basis for such declaration is unconstitutional.
Declaration of such State Emergencies is not new. It has happened before and has been questioned before. The same stands for Maharashtra. The implementation of Art. 356 may be questioned shortly, and may also be revoked if determined to be baseless and unjust. But only time will tell, with less than a week having passed, it is too little time to determine what the Hon’ble Apex Court will observe if approached.
