Of President's Rule and trigger-happy politicians

Rajeev Dhavan, senior advocate in the Supreme Court, has been involved in a number of cases with a bearing on the fabric of relations between Centre and State in a federal polity. He is the author of an authoritative book on the legal rationale, political purposes and ethical foundations of President's Rule in the States. He shared with Sukumar Muralidharan his perceptions of the current controversies over Article 356. Excerpts:

* What is your understanding of the function of President's Rule, and the circumstances in which it may be imposed?

May I just go back a little? President's Rule was inherent in the Government of India Act of 1919, but came into its own in 1935. When the debate in the House of Commons took place, Winston Churchill asked cheekily, why don't you arrange for a breakdown of law and order right now? This is essentially what has been happening. Central governments have been arranging breakdowns since the beginning. The most scandalous case was the imposition of President's Rule in Kerala in 1959. It opened up a new avenue - that the breakdown of law and order could be the basis for the imposition of President's Rule. Earlier, in the British days, law and order was the only reason where the Constitution permitted intervention. This law and order clause was in fact removed from the Constitution on Independence, because it is the imperial reason for intervention. It was allowed back in by Nehru in the Kerala case.

President's Rule is supposed to be invoked when there is a breakdown of the constitutional machinery - in other words, a paralysis so severe that it is impossible for the State government to handle it in any way. There are two tests for the imposition of President's Rule involved here, both of which must be met. You should note that after the 42nd Amendment, President's Rule can be imposed on a part of a State. Therefore, if you have internal disturbances in a part of a State, it is possible to use emergency powers without dissolving democracy in the State.

* It seems that a process of judicial review has been instituted since the case of S.R. Bommai versus Union of India was decided by the Supreme Court in 1994.

Unfortunately, the judiciary has not developed any jurisprudence on the purpose of President's Rule. Why is it there at all? As soon as the judiciary says that this is a matter of political judgment, it throws the baby out with the bathwater.

When the Supreme Court first took up the matter of President's Rule in 1977, they said they were not deterred by the political question doctrine. The fact that it is a political decision will not oust judicial review. In Bommai in 1994, the Bench is divided and it is not clear what the width of judicial review will be. But on the width of the power both the judgments have in fact said nothing. One would have expected the Supreme Court to turn around and say: enough is enough, we are not going to intervene just in perverse cases, but we are going to interpret the Constitution to say what a breakdown is.

* Would you say that finally the abolition of Article 356 would be warranted?

If parliamentary government can be managed at the Centre without President's Rule, then surely it can be managed in the States. But the possibility of invoking President's Rule makes politicians trigger-happy at the Centre. Today the judiciary must say that Article 356 was not meant for certain purposes. It was not meant to be for purposes of law and order, because that imperial provision was thrown out. But on this whole question, we have a very clumsy jurisprudence.

* Why do you say that the existing Supreme Court rulings - State of Rajasthan in 1977 and Bommai in 1994 - do not define adequately the principles of judicial review?

The scope of judicial review has been left wide. For example, Justice P.N. Bhagwati's justification in 1977 was that the Emergency was such a cataclysmic event that the loss of national mandate was a reason for President's Rule. In other words, such an imposition for loss of mandate was not permissible in other circumstances. And certainly, looking back, that judgment was an unmitigated disaster - because the scope of 356 was too wide and the scope of judicial review was mangled. The second aspect of that decision was that once a State legislature is dissolved, it is too late for further intervention.

Both these aspects come under review in Bommai. Picking up a cue from the Pakistan courts, Bommai overturns the Rajasthan precedent on the second question. There is a declaratory courage in saying that we will reinstate legislatures, but whether they will ever have the courage in a real-life situation to do this is doubtful. The main reason is that it would require in most cases an interim order by the courts, and they rarely do this.

Secondly, on the scope of judicial review, Bommai is nowhere near as wide as it is thought to be. What the judges are agreed on is that mala fide is always a ground for judicial review. Where there is a wide difference of opinion in Bommai is in the scope of judicial review. Only Justice P.B. Sawant's judgment says that there is a full-fledged review for reasonableness. Justice J.S. Verma and A.M. Ahmadi confine the grounds for judicial review. Justice B.P. Jeevan Reddy's judgment, which is the lead judgment, has an extremely awkward test - that is, if some grounds exist for the imposition which are sound, then the judges will not intervene. That is, you could have one sound ground and several perverse grounds, and there will be no judicial intervention. This takes away what it gives.

* Bommai also pronounces a certain opinion in terms of the "basic structure" of the Constitution. What are the practical consequences of this?

What Bommai said is that the preservation of the basic structure is a constitutional duty. Consider the implications of this for 356, because the basic structure today remains undefined.

* Certain of its elements are well understood - such as secularism, federalism, the rule of law, the process of judicial review...

Then the basic structure is what is there in the Preamble. If secularism is a part of the basic structure, then so is socialism, because they were introduced together. Rule of law is a part of basic structure, as is sovereignty, and we know that judicial review also is. But then, would any breakdown of the rule of law mean President's Rule? If violation of secularism is considered a reason, then secularism is as wide or as narrow as we want to make it. Justice Jeevan Reddy's judgment is eclectic and does not quite define what secularism is. The breakthrough in Bommai is that the basic structure has to be kept in mind while exercising constitutional power. Till then, the basic structure was only used to test constitutional amendments. But Union governments can still run riot on the plea of protecting the basic structure.

* But each invocation of 356 has to be justified in a process of judicial review in terms of a threat to the basic structure.

Justified to whom? This is where we run into the other problem. What is 356 for? If it is now also to protect the basic structure, then the narrower test I was proposing, which is a paralysis that makes it impossible for the State government to discharge its duties, disappears completely.

* Preservation of the basic structure is also a part of the constitutional duties.

Indubitably. But the Constitution has more than one provision to deal with the obligations of the State. In law and order we have 355, and we have a whole chapter to deal with administrative relations between Centre and States.

* So Article 356 can be dispensed with?

N. SRINIVASAN

Article 356 would have been relevant if it had been kept within its parameters. Nehru breached these parameters in 1951 and 1953, he smashed them in 1959, and Indira Gandhi proceeded to make mincemeat of them in her years in power. We should not think that Article 356 is the only possible defence of the Constitution. We must work on one assumption - that Indian federalism is cooperative and not confrontational in nature. The use of Article 356 has unfortunately been to treat the States as principalities, to confront them with the powers of the Union, and destroy them at will. Cooperative federalism means giving them a direction, bearing in mind that even these directives must be handled with rectitude and restraint. Today we send out teams to Tamil Nadu, West Bengal and Bihar. Now, these teams must be backed by some reason but there is none.

* Can you conceive of a situation in which the invocation of Article 356 would be just and reasonable?

We should construct these Articles in a manner that they can only be exercised for a particular purpose. This would require a complete restructuring of the text, new procedural safeguards, and a very rigorous and timebound process of judicial review. But unfortunately we know that our political and legal community is so agile that even the strictest of provisions acquires the most bountiful of perverse interpretations. We should be asking ourselves what are the contingencies under which we need President's Rule in States. If those contingencies are otherwise met by the Constitution, then there is no justification for 356. The most important contingency is insurrection in a part of India. This I believe has been dealt with most plentifully in the Constitution, in Article 352 which deals with a part of the State, in Article 355 which deals with internal disturbances, and in the cooperative federalism which exists in the second chapter of Part XI.

* How would you view this kind of clamour over Article 356 - among other things, it is being said that there was a pre-existing deal to dismiss a State government.

Any use of Article 356 by pre-arrangement and for political reasons is mala fide. If it is for political rather than constitutional purposes, it is ex facie perverse. And then, you cannot have a present decision for the future use of President's Rule, because 356 is not there to make promises. It is there to be used in an exigent situation, which by definition you cannot predict.

* Does the abuse of 356 have any implications for the role of Governors in the States?

Today Governors are appointed by politicians for political purposes. There is not even a shred of fairness about gubernatorial office. He is the Union's spy and hit-man in the States. Governors are partly to blame for not standing up to the Union. A Governor can never forget that he is the Governor of that State, and not an agent of the Union. As soon as he takes his or her oath of office, he or she becomes the head of the State, to be advised by the Cabinet of the State.

* But is there any linkage between the use of Article 356 and the Governor's role?

There is, because it is the Governor's constitutional duty to provide a neutral report, which today almost all Governors are incapable of. This crucial power of reporting rests with the Governor, who with access to all the information, comes to a suitable decision. The key to all this is cooperative federalism.

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