A President with a difference

Print edition : October 10, 1998

ON October 22, 1997, President K.R. Narayanan became the first constitutional Head of State to send back for reconsideration a Union Cabinet recommendation for the imposition of President's Rule in a State of the Indian Union. On September 25, 1998, he did this a second time, on this occasion in an equally considered but more confident and explicatory way. The knife of Article 356 has been wielded over a hundred times, overwhelmingly for partisan political purposes, since the republican Constitution was adopted in 1950.

There have been some very distinguished and constitutionally schooled men who occupied the office, notable among them being Drs. Rajendra Prasad, Sarvepalli Radhakrishnan, Zakir Husain and Shankar Dayal Sharma. The surprise is that though the frequency, indeed rampancy, of use of Article 356 against elected State governments and functioning Legislative Assemblies was widely recognised as political fraud (committed, it must be added, largely by Congress governments at the Centre), no President before the present incumbent thought it fit to record his constitutional disapproval through the limited technique of sending back to the Union Cabinet the recommendation for reconsideration. In this sense, for most of independent India's existence the Head of State has essentially been a rubber stamp for Article 356 misuse.

What explains the difference between then and now, between President Narayanan's handling of attempted Article 356 use and the passive attitude and inaction of his predecessors? There are two key factors which appear to constitute the answer.

The first factor is the profound constitutional and political import of the Supreme Court's March 11, 1994 majority judgment in the Bommai case, which, as of now, is the last word on Article 356. Pre-Bommai was a different ball game from post-Bommai: constitutional fraud can no longer be the rule so far as the use of Article 356 is concerned, and it need not even be the exception if the apex court's historic decision is put scrupulously into practice.

Breaking quite radically with past interpretations of the constitutional provision, the apex court laid down new, demanding and enforceable standards for the application of the knife against elected State governments with a majority and against functioning State Assemblies. Thus the "President's power" to issue an Article 356 proclamation must be understood to be a conditioned power; action under the provision is judicially reviewable; the "President's satisfaction", which is necessarily "subjective", must be formed on "relevant material" which can be scrutinised by the higher courts; no irreversible action, to wit, dissolution of a Legislative Assembly, is permissible unless both Houses of Parliament approve the presidential proclamation; until then, the most the Central executive can do is to keep the Assembly in "suspended animation"; and even after parliamentary approval, the courts can, in fit cases, restore the status quo ante. But the most important part of the Supreme Court's majority decision is the strict and overdue construction that the words describing the condition precedent for Article 356 invocation, "a situation...in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution," mean exactly what they were intended to mean by the Constitution framers, namely, a grave if not comprehensive constitutional breakdown - and not some lesser problem of alleged malgovernance, law and order deterioration, riots, corruption and so forth.

The second factor in the explanation is President Narayanan's own understanding of the meaning of Article 356 as interpreted by the Supreme Court in the Bommai case, and on a larger plane his appreciation of the role and limitations of a non-executive but "working" Head of State. The balance is a fine one to strike: it is between doing one's constitutional duty by making considered and timely use of the President's limited privileges as a defence mechanism against, say, Article 356 misuse and avoiding anything like a politically activist, populist presidency, which would be constitutionally inappropriate and also trigger political controversy which the office cannot bear.

Former Prime Minister Chandra Shekhar's public attack on President Narayanan's action of returning the Union Cabinet's recommendation on Bihar as setting "a wrong precedent" and as "a dilution of the Constitution" represents an opportunist and absurd over-reading of the doctrine of parliamentary primacy ("the supremacy of Parliament"). Chandra Shekhar can hardly claim consistency in this particular case. Moreover, he takes issue with both the President and the Supreme Court for "overstepping their authority" and "crossing reasonable limits". This former Prime Minister's track record suggests that on such matters, his endlessly evolving, cynical political position can be confidently expected to be the opposite of the constitutionally or morally defensible stand. While no one wants an overweening or activist presidency in India, the Chandra Shekhars of the political world need to be reminded that the Constitution requires both the executive branch and Parliament to function within its framework and limits.

Constitutional fraud, such as blatant misuse of Article 356, is too serious a matter to be left to the will and pleasure of the executive branch at the Centre. While the President's role in resisting such misuse is a limited one - he will have no choice but to sign the proclamation if it is sent back to him by the Union Cabinet - it can, under certain circumstances and if consistently and transparently played, prove effective as well as educative. As for the higher judiciary, the Constitution clearly vests it with the high power of judicial review, which essentially means seeing if the actions of the executive branch as well as of Parliament are in accordance with the Constitution.

President Narayanan, then, has shown on the vital Article 356 issue that he is a Head of State with a difference. His constitutionally sensitive, consistent and measured stand on Uttar Pradesh in October 1997 and Bihar in September 1998 must be applauded and learnt from. During its first few months in office, the BJP-led Government showed some good sense in resisting pressures from within the coalition to wield Article 356 against targeted State governments. That phase of restraint is over and the knife is out. The Vajpayee Government will be gravely mistaken if it thinks that it can gain politically from exploiting the problematical socio-political situation in Bihar - indisputably one of India's most backward and misgoverned States - and pursuing a course of constitutional defiance and adventurism.

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