Rights and questions

Print edition : June 20, 1998
A.G. NOORANI

PUBLIC memory is proverbially short. On October 7, 1992, the newly constituted Rapid Action Force (RAF) became operational under the command of the Central Reserve Police Force which had been set up under the CRPF Act, 1949. The RAF's specific task was to assist in the quelling of those communal riots where Central help became necessary.

A mere five days later, on October 12, 1992, BJP general secretary Pramod Mahajan went so far as to declare that the BJP-ruled States would not allow the RAF into their territories. He told mediapersons at Aurangabad that the party top brass had decided to ban the RAF's entry in Uttar Pradesh, Madhya Pradesh, Himachal Pradesh and Rajasthan. He cited two reasons. One was the likelihood of its abuse by the Centre for political ends. The other was that law and order is a purely State subject under the Constitution.

The BJP-dominated Government at the Centre needs to be reminded today of its stand on the RAF as it faces pressures from its partners in the rag-tag and bobtail alliance to use Central power to destabilise the State governments to which they are opposed. The Centre is in a fix. Gone are the days when Article 356 of the Constitution, which provides for the imposition of President's rule in the States, can be abused for partisan ends. The Supreme Court's ruling in the Bommai case put an end to that in six significant ways. First, the court is far more alert than ever before to perceive mala fides, in view of a sustained record of sheer abuse of Article 356.

Secondly, it has construed the crucial test prescribed by Article 356 - "a situation has arisen in which the government cannot be carried on in accordance with the provisions of this Constitution" - to mean the virtual impossibility of, not the difficulty in, governance.

Rapid Action Force personnel in Coimbatore after the city was rocked by serial bomb blasts in February.-K. ANANTHAN

Thirdly, it has not only reasserted but widened the ambit of the power of judicial review to a degree which provides a deterrent against abuse. The court can call for the files. Article 74(2) says that "the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court." The Supreme Court has ruled that this exempts from judicial scrutiny only the advice proper but not the material on which the advice was based. Ergo, it can call for the files to examine for itself whether the material was germane to Article 356 or reflected mala fides. (The Centre's claim of privilege will itself be subject to judicial determination.) The implications are obvious. The Centre's calculations will be exposed to the glare of publicity.

Fourthly, a State Assembly cannot be dissolved until each House of Parliament has ratified the President's proclamation as clause (3) to Article 356 requires. This gives the State Government precious time to act.

Fifthly, while no interim injunction can be granted against the making of the proclamation, an interim injunction can be granted against the holding of elections to the Assembly pursuant to the proclamation in order to avert a fait accompli.

Lastly, even if the proclamation is ratified by Parliament and the Assembly dissolved, the High Courts and the Supreme Court have the power not only to set aside the order of dissolution and order the revival of the Assembly but also order the restoration to power of the dismissed State Government.

SINCE invoking Article 356 is now a daunting job, the BJP regime has taken recourse to pressure tactics. It has arrogated to itself the right to monitor the "law and order situation in the States" and to send with fanfare, not unmixed with intimidatory hints, teams of officials to call the State Government to account. Tamil Nadu was the first in the series, but it is unlikely to be the last. The States are put in a bind. If they refuse, a la Pramod Mahajan in 1992, they will be seen by many as putting themselves in the wrong. If they receive the visitors, they risk an adverse pre-arranged verdict. Thanks to upright officials, the ploy did not work in Chennai. Next time, the team will be carefully selected.

Constitutionally, the Centre has no business sending such investigatory teams at all. It might be asked that if a team of journalists or civil libertarians can go and inspect the state of things in a State or city - as, indeed, they ought to do in the Shiv Sena's fiefdom, Mumbai - why cannot the Government of India? The answer is simple. Governments are creatures of the Constitution and must act within the limits it prescribes.

The first two entries in the State List of topics of legislation are relevant. The very first reads thus: "1. Public Order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power.")

The second reads: "Police (including railway and village police) subject to the provisions of Entry 2A of List 1." Under entry 2A of List 1, the Union List, the Centre has authority over "deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment."

These three entries make public order and police a state subject, exclusively - unless the situation deteriorates to such a degree that Central aid becomes necessary.

AS the Sarkaria Commission said, "A State Government has the sole responsibility for maintaining public order except where the use of the armed forces of the Union is called for." Sections 129 and 130 of the Criminal Procedure Code enable States to seek the aid of the armed forces of the Union to disperse an "unlawful assembly," a riotous mob.

It is very significant that Article 257-A, which was inserted in the Constitution by the 42nd Amendment during the Emergency in 1976, was deleted by the 44th Amendment enacted in 1978. It read thus: "The Government of India may deploy any armed force of the Union or any other force subject to the control of the Union for dealing with any grave situation of law and order in any State." This was deleted deliberately. All we now have is Article 355, which says that "it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution."

There is a world of difference between the expressions a "grave situation of law and order," which was deleted, and "internal disturbance which the State Government cannot control." The phrase "internal disturbance" was used in Article 352 originally as a condition for the proclamation of a state of Emergency. It has been substituted by the expression "armed rebellion."

Doubtless, Entry 2A read with Article 355 empowers the Centre to send its forces of its own accord and deploy them even against the wishes of a State government; provided, however, that the situation is one of "internal disturbance." But it has no right to invoke Article 356 in such a situation unless the governance of the State is rendered impossible and there is a collapse of the constitutional machinery. Central forces are sent to aid, not to supplant, a State government.

THE Sarkaria Report's observations (in paragraph 7.3.07) are very apt. Even when it lawfully sends its force, the Centre ''cannot assume the sole responsibility for dealing with an internal disturbance by superseding or excluding the State police and other authorities responsible for maintaining public order. Neither can the Union Government deploy, in contravention of the wishes of a State Government, its armed forces to deal with a relatively less serious public order problem which is unlikely to escalate and which the State is confident of tackling.''

These dicta must be read in the context of the fundamentals of India's federal polity which Dr. B. R. Ambedkar expounded in the Constituent Assembly. He said on August 4, 1949: "Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point." A day earlier, on August 3, 1949, when the provisions for President's rule in the States came up for discussion, Dr. Ambedkar was at pains to emphasise: "I think it is agreed that our Constitution, notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces, nonetheless is a Federal Constitution and when we say that the Constitution is a Federal Constitution it means this, that the Provinces are as sovereign in their field which is left to them by the Constitution as the Centre is in the field which is assigned to them." Hence the necessity for explicit provisions concerning Union intervention, in Article 356 of the Constitution (emphasis added, throughout).

When the Assembly had completed its deliberations, Dr. Ambedkar replied to the debate on November 25, 1949. He said: "As to the relations between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the legislative and executive authority is partitioned between the Centre and the States, not by any law to be made by the Centre, but by the Constitution itself. This is what (the) Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter."

No administrative practice can override the Constitution. Some day, a State might well question the right of the Union Home Minister or the Home Secretary to call for reports from them on the law and order situation.

The Rules of Procedure of both Houses of Parliament bar questions, adjournment motions and other motions if the subject is "not primarily the concern of the Government of India", for instance, law and order in a State.

It is time that, as in the days of Indira Gandhi and Rajiv Gandhi, the States ruled by parties other than those in power at the Centre get together and assert the States' rights under the Constitution.

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