A blow for federalism

The eighth Inter-State Council meeting achieves a consensus on safeguards to prevent the misuse of Article 356 of the Constitution.

in New Delhi

THE issue of limiting the Centre's power to impose President's Rule in a State by invoking Article 356 of the Constitution on the grounds of failure of the constitutional machinery has been an important aspect of the debate on Indian federalism. Very often, it is the interests of the parties governing at the Centre and in the States that have influenced the outcome of this debate. When these interests appeared to be in conflict with each other, a consensus on the need for restraint on the use of Article 356 has proved elusive, with the Centre remaining in a position to misuse this power on extraneous grounds against its political adversaries who are in office in the States.

A study in 2002 by the National Commission to Review the Working of the Constitution (NCRWC), however, showed that out of the 111 cases of imposition of President's Rule since the Constitution came into force in 1950, only in a little over 20 instances it could be said that Article 356 had been misused to deal with political problems or considerations such as maladministration. The NCRWC found that in many cases the exercise of this power was inevitable. However, in view of the fact that the Article represents a giant instrument of constitutional control of one tier over the other, it causes misapprehensions. As the consensus reached at the eighth Inter-State Council (ISC) meeting held in Srinagar on August 27 and 28 shows, strong federal pressures appear to have convinced both the Centre and the States that there should be no further delay in constitutional reforms on this issue.

The experiment with running a multi-party coalition at the Centre has taught the Bharatiya Janata Party (BJP) that its earlier obsession with the principle of a "strong Centre vis-a-vis the States", in conformity with its nationalistic and patriotic platform, would yield little political ground, with its allies and other key constitutional functionaries suspecting the motives behind every important federal decision taken by its government. On the contrary, the Congress(I), which has been primarily responsible for the rampant misuse of this power during the decades when it was in power at the Centre, has realised the need for constitutional safeguards against the misuse of the Article, as the party is in power in many States and faces the risk of politically motivated action by the Centre.

The regional parties, many of whom would like this power to be abrogated when they are in power rather than in Opposition in the States, also found it realistic to let the Centre retain this power, with sufficient safeguards against its misuse. Tamil Nadu Chief Minister Jayalalithaa, made a fervent plea for a "wholesale deletion" of Article 356 from the Constitution. In her speech read out at the meeting by Finance Minister C. Ponnaiyan, she made it clear that the country "had gone beyond a situation of putting in place checks and balances to prevent its arbitrary use, as they could also be easily circumvented on grounds of political expediency". However, being in a minority of States that are opposed to the retention of this Article, Tamil Nadu apparently did not question the Centre's claim of consensus on amending the Constitution to provide the very checks and balances that Jayalalithaa had opposed in her speech. On the contrary, Deputy Prime Minister L.K. Advani claimed that a rare unanimity among the Chief Ministers marked the decisions taken at the meeting.

Indeed, Article 356 had dominated the Council's deliberations ever since its inception in 1990, under Article 263. A consensus among the States and the Centre, which had been elusive all these years, is a pointer to the changing political dynamics within the federal structure. The "safeguards" against its misuse, which the ISC has agreed to incorporate in the Constitution, are not new: they have been part of the recommendations submitted by the Sarkaria Commission on Centre-State relations (1983-88). There could be no dispute about the desirability of following those recommendations, even in the absence of a constitutional amendment - as a matter of convention. The composition of the ISC, which includes the Prime Minister, all Chief Ministers, Governors of States under President's Rule and eight Union Ministers nominated by the Prime Minister - is such that its members belong to different political parties with various standpoints on Indian federalism. Their preference for constitutional amendment, rather than the adoption of conventions as suggested by the NCRWC, to reform Article 356 underscores the fragility of political institutions and leadership.

The Sarkaria Commission's first recommendation on Article 356 was that it should be used sparingly, in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or rectify a breakdown of constitutional machinery in the State. The ISC has agreed to this in principle, but precisely how the Union government intends to translate this into a constitutional amendment is unclear. The Commission had said that the "alternatives" to Article 356 might be dispensed with only in cases of extreme urgency where failure on the part of the Union to take immediate action under Article 356 would lead to disastrous consequences. The alternatives suggested by the Sarkaria Commission include issue of a warning to the errant State, in specific terms, that it is not carrying on the government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into account, it had suggested. The ISC's agreement with this recommendation appears to be an important step forward in the reform of the Article.

The Sarkaria Commission had also recommended that the Centre should exhaust its paramount responsibility to contain the situation under Article 355, which requires that it shall be the duty of the Union to protect the States against external aggression and internal disturbance, to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. However, in the absence of specific provisions on how to exercise this power effectively, this Article has always remained dormant. It came into prominence when the Centre invoked it to answer the Opposition's demand to use Article 356 against the BJP government headed by Narendra Modi in Gujarat in 2002 in the background of its abject failure to contain the anti-Muslim pogrom. It appeared then that the Centre used Article 355 to evade its responsibility under Article 356.

The NCRWC has recommended that the Centre should first consider taking action against an errant State under Articles 256 (regarding obligation of States and the Union), 257 (regarding control of the Union over States in certain cases) and 365 (on the effect of a State's failure to comply with, or to give effect to, directions given by the Union) instead of rushing to invoke Article 356. The ISC is yet to finalise its stand on this recommendation.

In order to make the remedy of judicial review on the grounds of mala fides a little more meaningful, the Sarkaria Commission had recommended a constitutional amendment to provide that the material facts and grounds on which Article 356(1) is invoked should be made an integral part of the Proclamation issued under that Article. This would also make the control of Parliament over the exercise of this power by the Union Executive more effective, it had said. The Commission also felt that the report of the Governor, on the basis of which, the President satisfies himself about the breakdown of the constitutional machinery in a State, prior to invoking Article 356, should be a "speaking document" containing a precise and clear statement of all material facts and grounds.

That the ISC has agreed to all these recommendations only shows its concern to ensure transparency in the exercise of this power. The ISC has also agreed to the recommendation of the NCRWC to amend Article 356 - in line with the Supreme Court's judgment in S.R. Bommai vs Union of India (1994) - to ensure that the State Legislative Assembly is not dissolved by the Governor or the President before the proclamation issued under the Article is approved by the Lok Sabha and the Rajya Sabha. As the dissolution of the State Assembly is an inevitable corollary in most cases of President's Rule, it is hoped that this restraint would prevent any arbitrary use of the provision. The Council, which has so far concentrated on the examination of the Sarkaria Commission's recommendations, took note of the Action Taken Report submitted by the ISC's Secretariat. Out of the Commission's 247 recommendations, the Council has so far taken decisions in respect of 230, of which 170 have been implemented, seven are at various stages of implementation and 53 have not been found acceptable. The Srinagar meeting deliberated on the remaining 17 recommendations, giving rise to hopes that the work relating to the Sarkaria Commission would be wrapped up and that the forum of ISC would hereafter be used to sort out important issues of cooperative federalism and socio-economic concerns.