A constitutional defence mechanism

After the Bommai judgment, the President's limited privileges have become a defence mechanism against Article 356 misuse.

EXPOUNDING on the intents and purposes of Article 356 in the course of the Constituent Assembly debates, Dr. B.R. Ambedkar expressed the firm belief that the emergency power inherent in the provision would be invoked only in the rarest of cases. And as Indian democracy matured, the need to do so would become less compelling, reducing the Article to a "dead letter".

Pronouncing perhaps the most detailed and authoritative of six judgments in the historic case of S.R. Bommai versus the Union of India on March 11, 1994, Justice B.P. Jeevan Reddy added an ironic postscript: "Since the commencement of the Constitution, the President has invoked Article 356 on as many as ninety or more occasions. Quite a performance for a provision which was supposed to remain a 'dead letter'. Instead of remaining a 'dead letter', it has proved to be the 'death-letter' of scores of State Governments and Legislative Assemblies."

In devising remedies for a patently untenable situation, the Constitution Bench of the Supreme Court explored new frontiers in jurisprudence. Six of nine judges opined quite firmly that "secularism" was a basic feature of the Constitution, which, if endangered, created the conditions for the invocation of Article 356. Other instances of the Article being used were to be tested against the requirement of preserving the delicate balance of powers inherent in a federal polity. Justices P.B. Sawant and Kuldip Singh were firmly of the belief that "democracy and federalism are the essential features of our Constitution and are part of its basic structure."

Justice K. Ramaswamy had a similar interpretation: "Federalism envisaged in the Constitution of India is a basic feature... The state qua the Constitution is federal in structure and independent in its exercise of legislative and executive power." Jeevan Reddy and Justice S.C. Agrawal, though steering clear of according federalism the status of a basic feature, did come up with a fairly strong formulation: "The Constitution of India has created a federation but with a bias in favour of the Centre. Centre has been made far more powerful vis-a-vis the States... But that does not mean that the States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers."

Essentially, the Bommai judgment implies that the loose and frivolous grounds that were customarily used to dismiss elected State governments could no longer stand the test of judicial scrutiny. As Sawant and Kuldip Singh put it: "(The) provisions require that the material before the President must be sufficient to indicate that unless a proclamation (under Article 356) is issued, it is not possible to carry on the affairs of the state as per the provisions of the Constitution. It is not every situation arising in the State but a situation which shows that constitutional government has become an impossibility, which alone will entitle the President to issue the proclamation."

Justices Jeevan Reddy and Agrawal, with the concurrence of Justice S.R. Pandian, argued forcefully for a notion of restraint as far as Article 356 was concerned: "The very enormity of this power - undoing the will of the people of a State by dismissing the duly constituted Government and dissolving the duly elected Legislative Assembly - must itself act as a warning against its frequent use or misuse, as the case may be..."

The Union Cabinet's advice to the President, that Bihar represented an appropriate case for the application of Article 356, failed to meet these criteria. The Governor's report on the situation in Bihar failed to establish that there had been a failure of the constitutional machinery. In the alacrity with which it took up the Governor's refrain that the Rabri Devi Government in Bihar represented a danger to constitutional governance, the Centre failed to exhaust all the preliminary steps available to it. And the fact that the Legislative Assembly had just provided the Rabri Devi Ministry with a resounding vote of confidence was also germane in the President's estimation, having been upheld as an irrefutable criterion by both the Sarkaria Commission on Centre-State relations and the Bommai judgment. Article 356, said the President in deep fidelity to the spirit of the Bommai judgment, was meant to be "culminative" in nature, after all other options had been exhausted.

The President has also perhaps propounded a new doctrine of executive caution in his communication to the Union Cabinet. In suggesting that when the Government is invoking Article 356 it should also ensure passage of the attendant resolution in both houses of Parliament, President Narayanan perhaps steps beyond the parameters of the Sarkaria Commission recommendations and the Bommai judgment, simply because neither of these ever had to contend with a similar situation.

The Bommai judgment does, however, argue forcefully that if the Presidential proclamation fails to obtain parliamentary approval within the stipulated period of two months, the Government dismissed under Article 356 would stand reinstated and the Assembly revived. The judgment to the contrary that the Supreme Court had delivered in 1977 was reversed in the process. As Justice Jeevan Reddy put it: "Disapproval or non-approval means that the Houses of Parliament are saying that the President's action was not justified or warranted and that it shall no longer continue. In such a case, the proclamation lapses, i.e., ceases to be in operation at the end of two months - the necessary consequence of which is that the status quo ante revives...The dismissal of a Gover-nment... cannot be equated to the physical death of a living being. There is no irrevocability about it. It is capable of being revived and it revives. Legislative Assembly which may have been kept in suspended animation also springs back to life."

Even if the hurdle of parliamentary scrutiny is crossed - which in the case at hand was far from axiomatic - the Bommai judgment also endows the judiciary with the power to restore a State government dismissed under Article 356. Jeevan Reddy again achieved the most powerful formulation of this position: "Now, coming to the power of the court to restore the Government to office in case it finds the Proclamation to be unconstitutional, it is in our opinion, beyond question. Even in case the proclamation is approved by Parliament it would be open to the court to restore the State Government to its office in case it strikes down the proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless."

In a delicate separation of powers between the institutions of the state, substantial damage could have been caused by parliamentary disapproval of a presidential proclamation or by a judicial ruling holding it unconstitutional. Both these were distinct possibilities in the case of Bihar and neither would have left the Central Government unscathed. In certain senses, the President's action was a timely warning to the BJP-led Government, to steer clear of a potentially suicidal course.

The President's action this time around is consistent with the principle established in October 1997, which in its turn was a radical departure from the pattern set a year earlier. As Governor of Uttar Pradesh, Romesh Bhandari played pivotal roles in both instances. In October 1996, he recommended extension of President's Rule in the State beyond the constitutionally permitted limit of one year, on the spurious grounds that the outcome of the State Legislative Assembly elections had been indecisive. Shankar Dayal Sharma, who was then in occupancy of Rashtrapati Bhavan, reportedly expressed his grave apprehensions, but went along with the Central Government's advocacy of the Bhandari doctrine. The Allahabad High Court overturned this proclamation, but a patently untenable situation for the United Front Government at the Centre was retrieved when the Supreme Court effectively mothballed the issue by referring it to a Constitution Bench.

A year later, Bhandari urged the Centre to dismiss the Kalyan Singh Government in Lucknow just hours after it had secured a vote of confidence in the Legislative Assembly. The Union Cabinet was split down the middle, but under the incessant badgering of Defence Minister Mulayam Singh Yadav and Congress president Sitaram Kesri, acquiesced in the Bhandari game plan. But the occupant of Rashtrapati Bhavan had changed in the year that intervened between Bhandari's two successive gambits. President K.R. Narayanan duly returned the Cabinet advice for reconsideration, prompting an abject retreat by the I.K. Gujral Ministry.

The dramatis personae today are the same. But with the exception of the President, they have all undergone a personality transformation and discovered principles that they had no use of earlier, or forgotten their own lofty professions from a year back. Certain observers have sought to confer the appellation of "presidential activism" on K.R. Narayanan's recent actions, implicitly premising themselves on the supposition that the President should remain confined within a ceremonial role. Yet, the "right to be heard" is an inalienable privilege of the Head of State even in constitutional monarchies. India's republican Constitution accords the President the right to urge the reconsideration of any advice rendered him by the Union Cabinet. In limiting him to one such request, the Constitution also protects itself from personalised or whimsical action. It is now becoming increasingly clear that these limited privileges of the Head of State could be a defence mechanism against the ravages that political partisanship could cause to the foundations of constitutional governance.