Rajeev Dhavan, a senior advocate at India’s Supreme Court, is the latest to raise voice against President’s Rule, a routinely abused constitutional provision. In a hard-hitting column in Outlook magazine, he says it’s time India got rid of this so-called emergency measure used so often for bringing state governments down for political purposes.
[Excerpts of Dhavan’s article published in April 2016…]
A Shot Of ‘Presidential’ Tyranny
If the Centre can function without President’s rule, surely the states too can. So why do we still have Article 356 in our Constitution?
In 1935, when governor’s rule provisions were introduced by the British Parliament in 1935, Colonel Wedgwood asked whether the emergency would be “real or contrived”. Churchill went further: “Since we are in such a happy mood, could the right Hon’ble member arrange for the breakdown (of constitutional machinery) now.” India’s experience has been along those lines, with every imposition of President’s Rule politically contrived and stage-managed. …
So, what exactly is President’s rule? Part of the emergency provisions in the Constitution, its exercise rests on there being “a breakdown of constitutional machinery…and the government of the State cannot be carried on in accordance with the provisions of the Constitution” (Article 356). It is preeminently a political power because the President acts on the advice of the prime minister. It is devastating for federalism as all powers of the state are exercised by the Union and it places democracy under suspension, making elected representatives and the legislative assembly non-functional.
This emergency power of the Centre was conceived in British India through Section 93 of the Government of India Act, 1935.
The history of President’s rule is a pernicious one, with 118 impositions. It means that federalism has collapsed in India that many times, chief ministers thrown out and legislators declared non-functional.
The first time was when Indira Gandhi imposed it on Kerala for six months and 22 days. President’s rule returned to Kerala in 1965 and stayed for almost two years. Then, for a year each in Bengal (1970), Orissa (1974), Tamil Nadu (1976), Karnataka (1977-78) and Assam (1979-80), and for two years and 8 months in Nagaland (1973-75). Punjab was under President’s Rule for over two years (1987-89), although the Constitution put a cap of one year. One year is a long time for the politics and governance of a state to be surrendered to the Union.
Whenever President’s rule was imposed, the aim was to topple state governments run by parties that are the Opposition at the Centre. Mrs Gandhi used it rampantly from 1965 to ’75, and even during the Emergency. President’s rule was imposed five times. The assembly was suspended in some cases so the Congress could stake claim on power upon its revocation.
This emergency power was conceived in British India through Section 93 of the Government of India Act, 1935. In the Dissolution case (1977), Justice Bhagwati called it “a hated power which disfigured (governance) symbolising British dominance over national aspiration”. British governors did not hesitate to dismiss their chief ministers (Sindh) or compel them to resign (Bengal). Governor’s rule was imposed in West Bengal. Examples from that era are sparse, but the threat was immense. In Independent India, the trend of President’s rule went out of control. And just when we thought that it had been phased out, the BJP has revived it as a necessary evil for political manipulation.
Should this power be abolished? No matter what happens, the Centre can never suffer President’s rule of the Article 365 variety. Parliament has also been troubled by defections and major problems of governance, including corruption and ineptitude. But no suspension of the PM and Parliament can take place.
The moot question is: If parliamentary democracy can continue at the Centre without President’s Rule, surely the states, too, can do without it.
President’s rule is a ridiculous and dangerous provision. For those who feel some national emergency may arise in a part of India, the general emergency power (in Article 352) can deal with it without disturbing federalism and losing out on democracy. There is no justification for retaining President’s rule. Excise Article 356 from the Constitution. Abolish President’s rule now.
In the history of Centre-state relations in India, the judgement of the Supreme Court of India in the S.R. Bommai vs Union of India case (1994) is considered to be a legal landmark. The court laid down some guidelines to prevent the misuse of Article 356 of the Constitution by parties in power at the Centre. One specific guideline was that support for the Council of Ministers should be tested on the floor of the House before deciding on President’s rule.