January 29, 2020
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An Imperial Hangover

An Imperial Hangover

THE BJP and its allies tried to use Article 356 to grab power in Bihar, without fighting an election and having failed to win a no-confidence motion against the Rabri Devi government. The President disapproved. The Cabinet unanimously—but amidst dissension—accepted the President's verdict. Rumblings within the BJP and allied camps suggest all is not over. Following a similar refusal in 1997 in UP, the President had made it clear that impositions of President's Rule aren't there for the asking, but can—indeed, must—be vetted by the President. His decision imposes limits on the hitherto unlimited abuse of Article 356, and invites us to review the role of the indirectly-elected President as the 'conscience keeper' of the Constitution.

Article 356 is publicly notorious—well-known, but not understood. Part of the 'emergency' provisions of the Constitution, like all 'emergency' powers, it's extraordinary—only to be used in conditions of real and grave emergency. Our rulers seem to have forgotten this. Forgotten, too, is that it's an 'imperial' provision (traceable to the Government of India Acts 1919-35) to impose British Governor's Rule on native governments. Following protests in the Constituent Assembly, it should have been deleted from the Constitution but was retained to arm Indians against themselves. It's anti-federal and undemocratic. Its effect is to wipe out 'state democracy' and establish Delhi Raj. Over 48 years, it's been used on almost 100 occasions, cumulatively for a period that adds up to 60 years— longer than the life of the Republic.

The constitutional safeguards have failed. So far, Parliament has approved all Article 356 impositions on the basis of the brute strength of party-in-power majorities. Apart from a debate on Kerala in 1959, discussions in Parliament have become perfunctory—often discussing several President's Rule measures in one day. Till 1977, the judiciary kept its hands off. Faced with nine impositions at a stroke by the Janata in 1977, the judiciary posed as an intervenor, but failed to check mass impositions of President's Rule on virtually two-thirds of the Indian people. Those who look to the Bommai judgement of '94 for judicial help are bound to be disappointed. The majority were reluctant to interfere. Three judges took the view that such interventions weren't judicially manageable. Justice Jeewan Reddy's lead judgement devised the test that if there was some basis for President's Rule being imposed, the judiciary would forbear. This is exactly the BJP's quarrel with the Bommai judgment, in that the court didn't interfere in the case of Himachal Pradesh.

The constitutional formula for sanctioning President's Rule is the presence of an 'emergency' where there is a 'breakdown of constitutional machinery'. Constant abuse has made the meaning of this phrase elusive. Nehru suspended democracy in Punjab in 1951-52 for nine months and 28 days so that the Congress government of Dr Bhargava could resolve dissensions. Was this an 'emergency'? Hardly. Once established as a basis for solving intra-party difficulties, it was used in favour of the Congress in Andhra in 1973, and UP in 1973 amongst others. Solving the Congress' problems became occasion for declaring 'breakdown of constitutional machinery'. But Article 356's chief abuse came when Opposition governments erupted following the 1967 polls. They were either dismissed by President's Rule; or replaced by Congress ministries through the inducements of money and places in the Cabinet. Little needs to be said about the nine impositions in '77 and '80, other than that they were an insult to democratic federalism. A 'breakdown of constitutional machinery' has come to mean anything, including charges of corruption as a reason for imposition (as in Tamil Nadu in '76 and Manipur in '79) with law and order as a reserve weapon. In most cases, the mere existence of a besieged 'minority' government was seen to be a breakdown. The Bommai decision didn't limit the expanse of Article 356, but indicated that governments should normally be defeated in the House. Ambiguity reigned, feeding politics with possibilities of abuse. In the Bommai case, the Supreme Court did, however, clarify that a Presidential proclamation should not pre-empt a parliamentary reversal by dissolving an Assembly which should, normally, be kept in suspended animation till Parliament debates the issue. All very logical and correctly so—even if 'suspended' assemblies invite others to grab power by monetary and other inducements.

If the Bommai verdict had not provided sufficient solace—as, indeed, it had not—who'd stop this nonsense? The answer came in the form of President K.R. Narayanan, using a power reposed in the proviso to Article 74, introduced after Indira's Emergency, giving the President the power to return a decision to the Cabinet on a once-only basis. Whatever this proviso may be used for, it was designed to vet declarations of 'emergency' to prevent presidents from taking the cowardly line that they were obliged to sign on the dotted line. By invoking his 'right to return', Narayanan established a role for the Presidency as the 'conscience keeper' of the Constitution. Within the parliamentary system, the Head of State had the right to 'encourage and warn'. Such warnings aren't ignored. But the right to return is new and merits scrutiny. What exactly is the 'conscience keeping' of an indirectly-elected President? Does it cover every Cabinet decision? More important, what is its scope? One view is that though this power must be sparingly used, the President's role is just to point to obvious mistakes. A broader view is that the President's powers are co-extensive with that of the Cabinet. He can substantively review Cabinet decisions, substituting his views. And, if he does this, whom and what does he consult?

Can he set up a durbar welcoming Opposition leaders to place their views? Or a parallel 'cabinet' of 'legal and constitutional' experts? Normally, his legal advice should come from the Attorney General, but that is unworkable as Attorney Generals are political advisors to the Cabinet. The nature of the President's power to return and the process to be followed should be clearer—lest a less sagacious future President interferes more often than he forbears.

The BJP's demand for a national debate is a ploy. What it must first do is publish all the details from the governor's report and the exchange with the President. Next, it must state its views on President's Rule since the BJP and its allies have taken different views on Article 356—depending on whether they were in power in Delhi or not. Serious consideration must be given to abolishing Article 356 which is more prone to abuse than use. This won't create a vacuum. The Constitution contains provisions for Centre and State to jointly solve problems. If the 'law and order' formula is used to impose President's Rule, much of India will be under President's Rule. India's federalism is founded on cooperation, not confrontation. Those who abuse power should not have it.

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