Each year, Constitution Day isobserved routinely on November 26 to mark the adoption of the Constitution of India on November 26, 1949, with leaders making solemn speeches and exhortations. This year, too, it was no different with President Ram Nath Kovind and Prime Minister Narendra Modi addressing the joint session of Parliament to mark the 70th Constitution Day. Opposition parties boycotted the function to register their protest against the manner in which the Centre and Maharashtra Governor Bhagat Singh Koshyari had colluded to install a minority government in the State and thus facilitated horse-trading. So the official function at the Central Hall of Parliament could only be an exercise in symbolism. The Centre, according to reports, has planned a year-long awareness campaign across the country on the constitutional rights of citizens and to make reading of the preamble to the Constitution mandatory for all Central and State government officials.
The political developments in Maharashtra between November 23 and 26, which were triggered by the controversial decision of the Centre to lift President’s Rule in the State, suggested that rather than the people and officials, it is the high-ranking constitutional functionaries in New Delhi and in the States who need to learn the values of the Constitution in order to succeed in achieving its goals.
On November 23, President Ram Nath Kovind issued a Proclamation, saying:
“In exercise of the powers conferred by clause (2) of article 356 of the Constitution, I, Ram Nath Kovind, President of India hereby revoke the Proclamation issued by me under the said article on the 12th day of November 2019, in relation to the State of Maharashtra with effect from the 23rd day of November, 2019.”
There was nothing unusual about the wording of the Proclamation, except what it concealed: its timing.
The notification of the Proclamation, according to reports, was digitally signed by the Union Home Secretary at 5:47 a.m. on November 23. The lifting of President’s Rule at that unearthly hour was necessitated because the Proclamation imposing President’s Rule had suspended Article 164, which facilitates the appointment of a Chief Minister and other Ministers by the Governor. Governor Koshyari had received a formal claim from the leader of the Bharatiya Janata Party (BJP) legislature party, Devendra Fadnavis, a few hours earlier that he was in a position to form the government with majority support in the Legislative Assembly, constituted afresh after the October 21 election. The Governor also received a communication from the leader of the Nationalist Congress Party’s (NCP) legislative wing, Ajit Pawar, stating that he and his party had decided to support the BJP in forming the government. These twin developments convinced the Governor that the time was ripe for swearing in the next Chief Minister of the State, although the fractured mandate in the election had resulted in no single party securing a majority to form the government on its own and forced him to recommend the imposition of President’s Rule on November 12.
On the face of it, the eagerness of the Governor and the President to lift President’s Rule in the State at the earliest in order to facilitate the assumption of office by a popular government can never be faulted. But the unseemly haste with which President’s Rule was lifted in the wee hours and Fadnavis and Ajit Pawar were sworn in as Chief Minister and Deputy Chief Minister within a few hours caught everyone by surprise. The surprise soon led to disturbing concerns that in the process of facilitating the transition from President’s Rule to assumption of office by a “popular” government, certain crucial requirements were ignored by high constitutional functionaries, namely, the President, the Prime Minister and the Governor.
The Government of India (Transaction of Business) Rules, 1961, as amended from time to time, seek to ensure “more convenient transaction of the business of the Government of India”. It is, however, another matter that the Narendra Modi government at the Centre found these very rules “inconvenient” enough to justify their circumvention for partisan purposes.
The Rules have two Schedules. The First Schedule enumerates various Standing Committees of the Cabinet to deal with different issues. The Second Schedule lists cases that shall be brought before the Cabinet. Cases relating to proclamation of emergency under Articles 352 to 360 and other matters related, thereto, are specifically listed under the Second Schedule.
Rule 7 (i) requires that all cases specified in the Second Schedule to these Rules, except cases covered by sub-rule (5) of Rule 6, shall be brought before the Cabinet. This exception deals with the competence of the Standing Committees of the Cabinet to take decisions if there is a commonality between the cases enumerated in the Second Schedule and the cases set out in the First Schedule. This exception is not relevant for our purposes.
Any matter under Article 356, which deals with provisions in case of failure of the constitutional machinery in States, is obviously among the provisions of the Constitution that need to be first placed before the Cabinet before a decision is taken. As President Kovind lifted President’s Rule in Maharashtra under Article 356(2), it is clear that any subsequent Proclamation revoking or varying a previous Proclamation imposing President’s Rule in a State should also be placed before the Cabinet for its clearance.
But the Prime Minister, in order to carry out the hasty drama in Mumbai in the wee hours of November 23, did not have the patience to fulfil the requirement of a Cabinet meeting, lest the NCP MLAs, who purportedly offered support to the Fadnavis government through Ajit Pawar, should be lured back by the party’s supremo, Sharad Pawar. He, therefore, relied on Rule 12, which deals with departure from Rules. It reads: “The Prime Minister may, in any case or classes of cases, permit or condone a departure from these rules to the extent he deems necessary.” Little did the first President of India, Dr Rajendra Prasad, who notified the Rules in 1961, think that a Prime Minister in future could rely on this exception to carry out a routine function, where a delay of a few hours to facilitate a Cabinet meeting could mean the end of political fortunes of the party in power at the Centre.
Rule 12
In 2011, the Cabinet Secretariat brought out a Handbook on writing Cabinet Notes. In this, it justified the use of Rule 12 to meet situations of “extreme urgencies and unforeseen contingencies” without defining them. According to the Handbook, the following guidelines are required to be followed in cases where Rule 12 is proposed to be invoked:
i) Proposals shall be moved only by the administrative Ministry/Department concerned with the subject;
ii) Proposals shall be accompanied by a detailed justification clearly bringing out the urgency involved in the matter and the exceptional circumstances that require it to be processed under Rule 12 along with a statement specifying the reasons why it could not be processed for obtaining the approval of the competent authority in time;
iii) Secretary of the Department/Ministry will ensure that all essential requirements, including inter-ministerial consultations, have been met before submitting the proposals for approval under this rule. This fact is to be mentioned in the proposal submitted for approval under Rule 12;
iv) The Ministry/Department concerned shall route the proposal through the Cabinet Secretary after obtaining the approval of the Minister-in-charge in all cases and also of the Minister of Finance in matters involving outgo of funds or other Ministers concerned, where the subject matter impinges on their business; and
v) Proposals of the Ministry/Department of which the Prime Minister is the Minister-in-charge are to be routed through the Cabinet Secretary by the Secretary of the Department concerned. However, in case the Department has a Minister of State, his/her approval is to be obtained in the first instance and, thereafter, the proposal routed through the Cabinet Secretary.
vi) In all such cases, where approval under Rule 12 has been obtained, it is necessary to obtain the ex- post-facto approval of the Cabinet/concerned Cabinet Committee unless the Cabinet Secretariat has, while communicating the approval, advised to the contrary.
These guidelines show that Rule 12 has been envisaged for exceptional cases and there are enough safeguards to ensure that it is not misused. In the case of the revocation of President’s Rule in Maharashtra during the wee hours of November 23, it is not clear whether the Centre had complied with these safeguards.
President’s conduct
The Prime Minister’s reliance on Rule 12, rather than on Rule 7 for the purpose of revoking President’s Rule, ought to have made President Kovind delay his signature. His readiness to sign the revocation notification without questioning its timing or reliance on Rule 12 was of a piece with what President Fakhruddin Ali Ahmed did before the declaration of the Emergency by Prime Minister Indira Gandhi on June 25, 1975. Ahmed signed the Emergency declaration of the Prime Minister, who relied on Rule 12, depriving the country of its democracy and individual liberties of the citizens until March 1977, when the Emergency was lifted. Ahmed’s conduct came under critical scrutiny by constitutional scholars who questioned his failure to uphold the oath he took while assuming office to protect and defend the Constitution. Kovind’s conduct in signing the revocation notification is, therefore, likely to raise similar questions of constitutional propriety.
Under similar circumstances, President A.P.J. Abdul Kalam was made to sign the notification dissolving the Bihar Assembly in 2005 in the wee hours while he was on an official tour to Moscow. The Assembly elections in Bihar that year had delivered a fractured verdict with no combination of parties staking a claim to form a stable government. However, when the Janata Dal (United) led by Nitish Kumar was about to stake its claim, Governor Buta Singh recommended the dissolution of the Assembly, which was kept under suspended animation, following the imposition of President’s Rule.
The Supreme Court, which declared the dissolution unconstitutional, found the Governor’s conduct arbitrary, while maintaining silence on the President’s action. Kalam’s biographer, P.M. Nair, in his book The Kalam Effect: My Years with the President , records that Kalam prepared his resignation letter after the Supreme Court’s judgment indicting Buta Singh, but chose not to go ahead with it. But Prime Minister Manmohan Singh did not rely on Rule 12. He submitted a formal Cabinet approval for the dissolution of the Bihar Assembly. While Kalam did not resign in order to avoid a political crisis at the Centre, Buta Singh, who was indicted by the court for his role in recommending dissolution to the Centre, resigned.
President K.R. Narayanan’s Model
President Kovind may find President K.R. Narayanan’s decision in 1998 to return the recommendation for imposition of President’s Rule in Bihar to the Union Cabinet for reconsideration during Atal Bihari Vajpayee’s first term as Prime Minister instructive. In his Minutes returning the recommendation for the Cabinet's reconsideration, to which Frontline had then secured exclusive access, Narayanan articulated his concerns over the use of Article 356 for extraneous reasons. The Minutes made it clear that imposition of Article 356, barring exceptional or extreme situations, must be preceded by non-confrontational efforts to sort out Centre-State differences and conflicts and then by issuing warnings and directives to and eliciting explanations from the State.
Narayanan had returned the Union Cabinet’s recommendation to impose President’s Rule in Uttar Pradesh in 1997 for reconsideration with a similar reasoned opinion during the term of I.K. Gujral as Prime Minister. Both the Gujral and Vajpayee Cabinets deferred to Narayanan’s advice and dropped the Cabinet proposals to impose President’s Rule without exercising the option of resubmitting them, which would then have become binding on the President.
In the light of Narayanan’s example, it is clear that Kovind had a valid precedent to rely on if he had chosen to return Modi’s recommendation to revoke President’s Rule in Maharashtra for reconsideration on two grounds: first, for invoking Rule 12 so as to enable the hasty swearing-in of Fadnavis as Chief Minister on November 23, and, secondly, to advise the Centre to rely on sources other than the report of the Governor to check whether Fadnavis’ claim of majority support in the Assembly was true. And if President Kovind was convinced of the merits of the Prime Minister’s decision, he could have, like Narayanan, given a reasoned order to show why he was satisfied that President’s Rule was no longer required in Maharashtra and why it was so urgent to lift it in the wee hours of November 23. But in not doing so, Kovind ignored an excellent legacy left by one of his illustrious predecessors.
The Role of the Governor
What the Supreme Court observed in Rameshwar Prasad vs Union of India , declaring the dissolution of the Bihar Assembly as unconstitutional, applies to Maharashtra Governor Koshyari. The majority judges of the Constitution Bench held in that case as follows: “There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully perform duties of his office and to the best of his ability, preserve, protect and defend the Constitution and the laws. The Governor cannot, in the exercise of his discretion or otherwise, do anything that is prohibited to be done. The Constitution enjoins upon the Governor that after the conclusion of elections, every possible attempt is made for formation of popular government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise of jurisdiction is wholly illegal and unconstitutional.”
In the case of Maharashtra, the Governor was accused of preventing the swearing-in of the Shiv Sena leader, Uddhav Thackeray, following his election as the leader of the Shiv Sena-Congress-NCP post-election alliance. Koshyari did so by hastily swearing in Fadnavis as the Chief Minister, accepting his fraudulent claim that he enjoyed a majority in the Assembly because of the assurance of support from the NCP legislature party leader, Ajit Pawar.
In 2005, Buta Singh did something similar. In his report to the Centre, he stated that 17-18 MLAs belonging to the Lok Janshakti Party were moving towards the Janata Dal (United), which would mean that the JD(U) might be in a position to stake its claim to form the government. Buta Singh assumed that the move was indicative of various allurements having been offered to the MLAs and, therefore, recommended dissolution of the Assembly, because such a post-election alliance, he suggested, would distort the verdict of the people.
The Supreme Court considered Buta Singh’s conclusion as arbitrary. It observed: “This shows that the approach was to stall JD(U) from staking a claim to form the government. At that stage, such a view cannot be said to be consistent with the provisions of the Tenth Schedule (dealing with disqualification on the grounds of defections). In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of ‘assumption’ or ‘perception’ as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a government by a political party, an area wholly prohibited insofar as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act.”
The Supreme Court further held: “If a political party with the support of other political party or other MLAs stakes claim to form a government and satisfies the Governor about its majority to form a stable government, the Governor cannot refuse formation of government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule. Governor is not an autocratic political ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous.”
Immunity of the Governor
As in the case of the Bihar Governor in 2005, the conduct of the present Maharashtra Governor came under critical scrutiny before the Supreme Court when it heard the writ petition filed by the three aggrieved parties, namely, the Shiv Sena, the NCP and the Congress, seeking a direction to the Governor to invite Uddhav Thackeray to form the government and quash the appointment and swearing-in of Fadnavis as Chief Minister. The three-judge bench comprising Justices N.V. Ramana, Ashok Bhushan and Sanjiv Khanna first held an urgent hearing on Sunday, November 24, followed by another hearing on November 25 when it examined the proof of letter of support extended by Ajit Pawar to the BJP along with the Governor’s invitation to Fadnavis to form the government.
Without going into the merits of the petitioners’ plea that the invitation to Fadnavis was unconstitutional, arbitrary, illegal, void ab initio and violative of Article 14 of the Constitution, the court held on November 26 that it was necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister had the support of the majority or not.
The bench justified its direction in order to “curtail unlawful practices such as horse-trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable government”. The bench, therefore, requested the Governor to ensure that a floor test was held on November 27 at 5 p.m., preceded by the appointment of a Pro-tem Speaker and oath-taking by all the elected members. “The Pro-tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No.3 (Fadnavis) has the majority…. The floor test will not be conducted by secret ballot. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same,” the bench dictated in its order.
The interim order had its desired effect. Fadnavis and Ajit Pawar resigned on November 26 itself, making the holding of the floor test on November 27 unnecessary. Although the Supreme Court did not go into the issue of Governor’s immunity—a ground raised by the respondents, namely Fadnavis and some BJP MLAs, before the Supreme Court—its ruling in the Rameshwar Prasad case in 2006 makes it clear that the immunity granted to the Governor under Article 361(1) does not affect the power of the Supreme Court to judicially scrutinise his recommendations to the Centre on the grounds of mala fides. A mala fide act is wholly outside the scope of the Governor’s immunity under Article 361(1), which provides that he shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties, the court had held in that case.
The bench significantly took note of the contention that prima facie the action of the Governor revoking President’s Rule at 5:47 a.m. and administering the oath of office at around 8 a.m. reeked of mala fide. It also noted the submission of the petitioners that Ajit Pawar was never authorised to form the alliance with the BJP. These two contentions were not contested by the respondents. The petitioners told the court that the letter presented to the Governor, although allegedly signed by 54 elected members of the NCP, was unaddressed and did not have a covering letter or any other statement promising their alliance to the BJP. “In the aforesaid context, the sole reliance (by the Governor) on the …letter to prove majority was not prudent,” the petitioners submitted. The Governor had no reason to disbelieve the same, the respondents said in reply, adding that he was not obliged to conduct a roving inquiry into the same.
The bench, in its interim order, rejected the contention of the Solicitor General, Tushar Mehta, that it could not monitor the proceedings of the Assembly in view of Article 212. Senior counsel Mukul Rohatgi, representing some BJP MLAs, argued that the Supreme Court could not sit in appeal over the Governor’s order to set the dates for the floor test. The Governor had given Fadnavis 15 days’ time to conduct the floor test, which could not be curtailed to one day, he submitted.
The bench held that Article 212 would have no application as it related to the validity of the proceedings in the legislature of a State, which could not be called into question in any court on the grounds of alleged irregularity of procedure. No act of any officer or member of the legislature of the State has been made the subject matter of the present petition before this court, the bench pointed out. It then relied on the line of precedents wherein the court had directed holding of floor tests at an early date to establish the majority of an incumbent Chief Minister.
Although the court has kept the other issues arising in this case open, it is not likely that it will prioritise hearing of them over others, considering that the petitioners’ immediate grievance has been remedied.
