'It must be retained, but its abuse prevented'

Justice P.B. Sawant, now the Chairman of the Press Council of India, was part of the apex court's majority opinion and wrote a judgment along with Justice Kuldip Singh in the Bommai case. In an interview to V. Venkatesan in New Delhi, Justice Sawant discusses issues relating to the use and abuse of Article 356. Excerpts:

Has the Supreme Court's judgment in the Bommai case been able to limit the abuse of Article 356 by the Centre? Is Article 356 relevant today?

I would like to begin with the appointment of Governors. In my view, appointments to all constitutional posts should be made by an independent body. The President has to appoint Governors in accordance with the advice given by this body, and not by the Cabinet. The trouble arises when Governors are appointed by the party in power. Many a time, these Governors have acted as nothing but agents of the party in power. Often, reports sent by Governors to the Centre have been tendentious and motivated. People have lost confidence in the impartiality of these reports. Therefore, we must begin by examining the genuineness or truthfulness of a report. If a Governor submits a report, the Union Cabinet should scrutinise it impartially. The fact that a State is ruled by an Opposition party should not come into it. The members of a Cabinet must realise that they have a major responsibility in ensuring that they have scrutinised the report in a fair manner. They can also send a team to find out if the facts presented in a report are correct or not. The Government has several sources from which they can gather information about what is going on in a State. The Constitution empowers the Government to satisfy itself completely about the relevant facts from sources other than the Governor.

The Governor should also be impartial and take the necessary precautions before sending a report to the Centre. Much depends on the political integrity of Governor. He should not allow himself to be misled by vested interests.

Just because Article 356 is often misused, it should not be deleted. It serves a constitutional purpose, and must be retained. At the same time, precautions should be taken to prevent it from being abused. The Governors, the Cabinet and the President, all have a duty to prevent its abuse. The President has the power to ask the Cabinet to reconsider its advice on imposing President's Rule in a State if he is not satisfied with it. Of course, if the Cabinet gives the same advice again, his hands are tied.

Article 355 requires the Centre to protect every State against external aggression and internal disturbance and ensure that State governments function in accordance with the provisions of the Constitution. Can the Centre invoke this Article to interfere with the federal set-up and encroach on the States' domain? What are the consequences of the Centre making a subjective interpretation suggesting that the constitutional machinery in a State has broken down, thus warranting the use of Article 356?

N. SRINIVASAN

The facts have to be objective. If the facts are objective, then the interpretation also has to be objective. You cannot manipulate facts. There may be some differences here and there while interpreting, but the conclusions should be objective. The courts can look for evidence to see whether the decision taken by the party in power would have been taken by any other party, given the facts.

There is a lot of difference between the failure of law and order and internal disturbance. Unless a State Government is not in a position to cope with law and order problems, you cannot conclude that its constitutional machinery has broken down. Only if the constitutional organs of a State refuse to cooperate, if a State government is unable to take any steps to correct the situation, if a State government is unable to manage its day-to-day affairs, if the police go on strike, if industries are unable to work, and if the entire economy is paralysed or is unable to move, can the constitutional machinery be said to have broken down.

How can the imposition of President's Rule improve the situation?

That issue should also be raised. If the constitutional organs refuse to cooperate because a particular government is in power in a State because they have grievances against it, supposing criminals are in power and the people refuse to cooperate, such situations can be corrected by Central intervention.

With a coalition Government in power at the Centre, the pulls and pressures from its allies have resulted in further strains to the federal set-up. The Centre appears to be unable to cope with the political dynamics of a coalition that has made strident demands for the imposition of President's Rule in a few States. In fact, one of the allies of the BJP-led coalition Government has demanded that President's Rule be imposed in a particular State because there was a pre-election understanding on this matter.

If a Government is dismissed because of an earlier understanding that the Central Government would dismiss a particular State Government in return for support extended by an ally from the same State, that itself will spell out mala fide in dismissing. No greater proof is necessary to set aside the order dismissing the State Government. You cannot ignore the background of a decision. The courts can certainly go into the political background of a decision. If the courts don't, they are guilty of dereliction of duty.

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