Article 356, Bommai and fair play

Bommai

IT is an irony of contemporary politics that Article 356 - a knife placed in the hands of the Centre for use against State governments in claimed defence of the Constitution - seems to pose a more real threat to the life of the Bharatiya Janata Party-led coalition at the Centre than to any particular State government. Therefore, the answer to the question, 'Who is afraid of Article 356?' seems to be: 'No one as much as the BJP.'

The tantrum-backed one point demand for the dismissal of the DMK Government in Tamil Nadu pressed on the Centre by the AIADMK supremo, former Chief Minister Jayalalitha, and to a lesser extent the demands made by the Samata Party for the dismissal of the Rashtriya Janata Dal Government of Bihar, and by Mamata Banerji's Trinamul Congress for some form of Central action in Left Front-ruled West Bengal, make for a great deal of uncertainty, chaos and volatility. They have virtually destroyed the political credibility of the Vajpayee regime within four months of its taking office.

To be fair, the BJP has thus far resisted intense pressure to wield the knife of Article 356 in the face of the clear injunctions handed down by the Supreme Court in its majority judgment in the Bommai case. This contrasts with the appalling record of the Congress(I) in the pre-Bommai political era and, in fact, with the record of every Central government without exception. But how long this resistance can be maintained, and with what effects and implications, is one of the interesting questions of evolving Indian politics.

It must also be noted that while resisting the demand to use Article 356, the Vajpayee regime has not been above making some unedifying noises to put State governments on the defensive, if not to intimidate them, and sending Central fact-finding teams in situations where they are clearly unwarranted and represent transparent exercises in political opportunism. What, other than political exigency, can be the explanation for despatching a Central team to West Bengal and not undertaking such exercises in the case of Jammu & Kashmir or Uttar Pradesh or Maharashtra or even Andhra Pradesh (as the Congress(I) president, Sonia Gandhi, has pointed out)?

There can be little doubt today that provisioning a supposedly federal Constitution with the knife of Article 356 was a blunder of the first order committed by the founding fathers. Since 1950, the knife has been used more than a hundred times, which strongly suggests that cheating has been the rule and fair play the exception in the quasi-federal game the Centre has played, for nearly half a century, against the States in the name of the Constitution. Article 356 abuse can be characterised as perhaps the grossest and most persistent form of violation of democracy in independent India. And more often than not, the head of the State concerned, the Governor, has played the role of dalal, even hatchetman, in the collusive and fraudulent misuse of Central powers.

While moving the Draft Constitution, Dr. B.R. Ambedkar, one of its principal architects, explained that the form of the Constitution was federal and that it instituted a dual polity, with the Union at the Centre and the States at the periphery, each endowed with sovereign powers to be exercised in the field assigned to it by the Constitution. An important point underlined by him was that the Union was not a league of States, united in a loose relationship, nor were the States agencies of the Union, deriving powers from it. There was no question of one being "subordinate to" the other in its own field and indeed the authority of one was to "coordinate with" that of the other. Dr. Ambedkar identified the basic principle of federalism as the partitioning of legislative and executive authority between the Centre and the States - not by any law made by the Centre, but by the Constitution itself. Grasping this principle is vital to any serious attempt to correct and revitalise the performance of democratic institutions in India.

Article 356 (as Soli Sorabjee, the present Attorney-General, has pointed out in a critique) was shaped by historical circumstances that cast "a deep shadow on the deliberations of the Constituent Assembly." The widespread perception that India was going through a time of troubles and that a grave threat to the unity and integrity of India might arise at any time convinced the Constitution makers that a strong Centre was needed to deal with emergency situations.

In justifying the provisions for a strong central authority in the Constituent Assembly debate, Dr. Ambedkar pointed to then-prevailing tendencies everywhere in the world towards a centralism of powers at the expense of the constituent units. Conceptually, he offered this insight: the Indian Constitution would work as a federal system in 'normal times' but in times of 'emergency' it could be worked as though it were a unitary system. Admitting the charge that the Centre had been given authority to override the States, he pleaded the defence that these were not the normal features of the Constitution. He placed on record the expectation that Article 356 would "never be called into operation" and would "remain a dead letter." Unfortunately, the vision behind this constitutional compromise which assumed moderation, democratic goodwill and fair play in a liberal sense was dishonoured repeatedly in republican India.

The higher judiciary must be criticised for failing - until March 11, 1994 - to perform its role as constitutional umpire. Dr. Ambedkar's nuanced advocacy of the quasi-federal scheme before the Constituent Assembly underscored the idea of judicial review as an imperative in making the scheme work properly. But the record shows that the judiciary failed to use this power to prevent, counter and correct the ceaseless misuse of Article 356. Fortunately, this situation changed quite profoundly with Bommai.

The nine-member Constitution Bench took up two of the critical issues before Indian politics, secularism and federalism, and came up with a powerful determination that, if put to work, could make a real difference to the working of the political system. In practical terms, it full-throatedly upheld the dismissal of the BJP State governments of Madhya Pradesh, Rajasthan and Himachal Pradesh in December 1992 - because their anti-secular actions were inconsistent with the secular Constitution. Upholding the priority of secularism as part of the basic structure of the Constitution, it laid down the principle that Article 356 use in the defence of secularism against communal threats and challenges was perfectly justified. The majority, however, held as unconstitutional the Centre's use of the knife of Article 356 in Nagaland (1988), Karnataka (1989) and Meghalaya (1991), although there was no possibility of reversing the effects of these unconstitutional actions.

In arriving at these politically important verdicts, the apex court undertook a de novo and partly radical exploration of Article 356. In making up its mind at the end of the exploration, the court placed on high ground and beyond constitutional question the power of judicial review over Centre-State relations generally and, in particular, over the resort to Article 356 by the Centre. Without such a power, the written constitutional scheme, and any question of fairness and justice subsisting in the federal aspect of the scheme, would be a fraud. The majority judgment served notice on the system that, in future, the constitutionality of the use of Article 356 would be eminently justiciable.

The key operative part of the Supreme Court's landmark judgment lies in the majority agreement reached on the following points:

* The correct interpretation of the expression in Article 356, "a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution," is a constitutional breakdown and impasse. Article 356 cannot be invoked in situations that can be remedied, that do not create an impasse, that do not make governance of a State in accordance with the Constitution impossible.

* The validity of the proclamation issued by the President under Article 356(1) is "judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the proclamation was issued in the mala fide exercise of power." When a prima facie case is made out in the challenge to the proclamation, "the burden is on the Union Government to prove that the relevant material did in fact exist." The material may be the report of the Governor or something else, but it must meet the new test.

* Article 74(2), which bars judicial review so far as the advice given by the Council of Ministers to the President is concerned, is "not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction."

* The Constitution places a check on executive power exercised in the name of the President by requiring parliamentary approval of a presidential proclamation issued under Article 356. Therefore, "it will not be permissible for the President" to exercise powers under sub-clauses (a), (b) and (c) of Article 356(1) and to "take irreversible actions" until "at least both the Houses of Parliament have approved of the proclamation." In other words, the Legislative Assembly of a State cannot be dissolved until "at least" both the Houses of Parliament approve the executive action. (As Sorabjee points out appreciatively: "The plain language of the provision does not impose any such restriction. The impelling consideration for reading into the article such limitation was the anxiety to place a check on the executive and also to ensure that grant of final relief does not become difficult if not infructuous. Historical realism prevailed over literalism.")

* Article 365 being"more in the nature of a deeming provision," the directions given under it "must be lawful" and "their disobedience must give rise to a situation contemplated by Article 356(1)." It is not as though "each and every failure" to comply with Central directions "ipso facto gives rise to the requisite situation." Thus the executive cannot have recourse to Article 365 for imposing President's Rule if the situation contemplated by Article 365(1) has not arisen.

* Except in the rarest of rare cases, the floor of the House is the sole constitutionally ordained forum for testing the strength of a Ministry and determining whether it has lost or retains the confidence of the House.

* If the presidential proclamation is held invalid, "then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the Court to restore the status quo ante" and to bring back to life the Legislative Assembly and the Ministry.

* While the court "will not interdict" the issuance of a presidential proclamation or the exercise of any other power under the proclamation, in appropriate cases it will have the power by an interim injunction to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the proclamation. This it can do to avoid a fait accompli and to prevent "the remedy of judicial review (from) being rendered fruitless."

* Violation of any basic feature of the Constitution by a State government is a valid ground for the exercise of Article 356. Secularism being part of the basic structure of the Constitution, its violation will justify use of Article 356. (This was the unanimous opinion of the nine judges, not just the majority opinion.)

This detailed and progressive interpretation of Article 356 and State rights is now the law of the land - and will remain so unless the majority judgment of a larger Supreme Court bench changes it. Bommai is not an absolute guarantee against Article 356 misuse, and indeed after the apex court's decision the Central executive has made attempts to misuse the knife. But getting rid of Opposition State governments through this technique has become incomparably more difficult -to a point where it seems to threaten the fragile existence of the Vajpayee Government more than it does the State governments targeted. But the real place where the issue must be won is the arena of democratic public opinion and mass politics.