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How an SC judgment checked the misuse of Article 356

Mar 11, 2024 01:45 PM IST

In 1988 the Sarkaria Commission found that at least a third of all Article 356 impositions were politically motivated

While the national Emergency imposed by Indira Gandhi is etched in collective Indian memory, the more frequently imposed state emergency provision, Article 356, is now rarely used. We must thank the Supreme Court judges who decided SR Bommai v Union of India 30 years ago today for this change.

Writing during the Partition, the Constitution framers feared secession, violent ethnic conflict, and communist revolutions in certain states. (AP)
Writing during the Partition, the Constitution framers feared secession, violent ethnic conflict, and communist revolutions in certain states. (AP)

Article 356, also known as President’s Rule, is designed to be invoked when a state cannot function constitutionally. It grants the Union Cabinet power to dismiss democratically elected state governments and dissolve legislative assemblies. While the constitutional framers intended Article 356 to be used sparingly, its misuse by various Union governments to topple Opposition-led state governments has been rampant. On March 11, 1994, nine Supreme Court judges, hailing from eight states, took a stand against this abuse of power. Without augmenting their authority, they put crucial limits on the Union government’s discretionary power, strengthening democracy and federalism.

What led to this case?

It started with the events on April 21, 1989. As the world watched 100,000 students march across Tiananmen Square in China, in Bengaluru, then chief minister SR Bommai was fighting political upheaval; Prime Minister Rajiv Gandhi had dismissed Bommai’s Janata Party-led government and dissolved the legislature after 19 MLAs withdrew support. By the time President R Venkataraman issued the order for President’s Rule, seven lawmakers had rejoined Bommai, who again claimed a majority. Governor P Venkatasubbaiah never gave Bommai the chance to prove his majority, and the Karnataka high court rejected Bommai’s petition challenging President’s Rule.

His government’s fate reflected a broader pattern of Union governments misusing Article 356. In 1988 the Sarkaria Commission found that at least a third of all Article 356 impositions were politically motivated.

The reason was simple: Once dismissed, it was much harder for that government or party to get reelected. Our study titled “President’s Rule in India: State Emergency or Political Capture?” finds that of the 123 instances of President’s Rule in states (1952-2019), the dismissed CM continued only in 24 cases, and the dismissed party formed the government again in only 44 instances. The then-dominant Congress represents 29 of these 44 instances.

As Bommai approached the Supreme Court, there were other cases of President’s Rule with varying circumstances. In 1987, Congress won and formed the government in Nagaland, but a 1988 split in the party and the wrongful confinement of 13 MLAs prompted the Union government to impose President’s Rule. In 1991, in Meghalaya, the speaker challenged the government and disqualified five MLAs for defection, and then called the confidence motion a tie, triggering President’s Rule. The Babri Masjid demolition in 1992 sparked violence, followed by the government’s resignation and President’s Rule in Uttar Pradesh, which was never challenged. However, soon after, BJP governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh also faced President’s Rule for alleged support of communal groups and a breakdown in law and order. All three states challenged President’s Rule as politically biased. Petitions challenging the imposition of President’s Rule in all five states (except Uttar Pradesh) were reviewed along with SR Bommai’s petition.

Why did the Constitution have such a provision?

Writing during the Partition, the Constitution framers feared secession, violent ethnic conflict, and communist revolutions in certain states. They decided that the power to intervene during a breakdown of law and order, or constitutional governance, would lie with the Union government rather than the state CM. However, they were also aware of its potential for abuse. BR Ambedkar explained, “I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes… and I share the sentiments that such articles will never be called into operation and that they would remain a dead letter.”

Far from it. All but two states (Chhattisgarh and Telangana) have been under President’s Rule, 123 times, not including 19 impositions in Union territories. The governments in Bihar, Uttar Pradesh, Punjab, Jammu and Kashmir, Odisha, Manipur, and Kerala have been dismissed most frequently.

In terms of duration, Punjab and the erstwhile state of Jammu & Kashmir have borne the brunt. Typically, President’s Rule is valid for two months unless Parliament extends it for up to six months. Extensions beyond a year are only permitted in a national security emergency or if the Election Commission certifies that holding assembly elections is difficult. Even then, the limit for President’s Rule is three years, but through a constitutional amendment, an exception was made for Punjab, whose residents experienced Union rule, cumulatively, for almost a decade.

When should Article 356 be used?

The formal procedure to invoke Article 356 begins when the governor sends a report to the Union Cabinet explaining why the state government cannot function according to the Constitution. If the Cabinet concurs with the governor’s report and recommends that the President invoke Article 356, then the President has discretionary power. However, the Constitution is silent on what constitutes a failure of constitutional machinery or a constitutional emergency, making the provision vulnerable to misuse.

In practice, the governor is appointed by the Union cabinet, and over time, the governor’s office becomes partisan. Consequently, taking time to form a coalition is sometimes opportunistically interpreted as political instability.

Article 356 can be invoked in three broad ways - one, in line with the goal spelled out in the Constitution to deal with a genuine constitutional emergency, two, using an emergency as a pretext to increase the power of the Union government, and three, to increase the power of the Union government and reduce the power of the state government without any emergency occurring.

The frequent misuse of Article 356 started with Indira Gandhi, who imposed it 48 times, including four times during the 22-month national Emergency. In 1977, when Morarji Desai formed a coalition government, he imposed President’s Rule 13 times, including in nine Congress-governed states. The Janata government would impose President’s Rule four more times in 1979 under Charan Singh. When Indira Gandhi returned as PM in 1980, her government retaliated and imposed President’s Rule in nine states with Opposition party governments.

Were the tactics of Indira Gandhi and the Janata Party exceptional? In our study, we analysed the legislative data of every Union and state government between 1952 and 2019. We find that the primary driver for imposing President’s Rule is political arithmetic. Given a Union government in power at the Centre, a five-percentage-point smaller seat share of a state government is associated with a 10% higher probability of President’s Rule.

Unsurprisingly, coalition governments in states are about three times more likely to experience President’s Rule than state governments formed by a single party. The number of times a party has formed a government in the state in the past, i.e., more experienced governments, is correlated with a lower likelihood of President’s Rule. The Union government is more likely to take advantage when there is a political vacuum in a state; for instance, the death of a CM in office increases the likelihood of President’s Rule by 37 times. Finally, emergencies such as communal riots or natural disasters are not significant predictors of President’s Rule, and emergencies are not even ostensible triggers. It’s pure politics - the strength of the state’s political majority determines the likelihood of President’s Rule.

The SR Bommai judgment

In Bommai, the Supreme Court faced three primary questions: One, whether proclamations of President’s Rule were justiciable; two, the scope and limits of the President’s powers under Article 356; and three, the effects of holding such a proclamation invalid after Parliament’s approval.

The majority of the nine-judge bench , across six opinions, overruled the 1977 decision in State of Rajasthan v Union of India, and held that proclamations under Article 356 were subject to judicial review. The courts could strike down an Article 356 proclamation if found to be malafide or based on wholly irrelevant grounds. When reviewing the proclamation, the court would examine if it was issued based on any material, if such material was relevant, even if partially, to impose President’s Rule.

Furthermore, it said that the President must have relevant material, such as a governor’s report, before imposing President’s Rule. Despite Article 74(2) prohibiting review of ministerial advice, courts can verify the existence and relevance of the underlying material for such advice without reviewing the quality of the advice. And if the proclamation is held unconstitutional, the court can restore the dissolved government, even if Parliament had previously approved such a proclamation. The review would have no meaning without granting relief upon finding President’s Rule unconstitutional.

One relevant question was whether the state government had the chance to test its strength in the state legislature before President’s Rule was imposed. A majority declared the imposition of President’s Rule in Karnataka, Nagaland and Meghalaya unconstitutional. But the imposition of President’s Rule in Himachal Pradesh, Rajasthan, and Madhya Pradesh, to control communal violence, was upheld.

Did it have an impact?

President’s Rule was invoked 81 times pre-Bommai, 16 times during review, and 26 times post-Bommai. In our study, we calculated simple probabilities of observing President’s Rule of 0.9%, 1.2%, and 0.3% before, during, and after the judgment.

We found that post-Bommai, destabilising state governments with strong political mandates became harder. Crucially, coalition governments are not more likely to face President’s Rule, likely due to the floor test requirement, allowing them to demonstrate political strength. Now, situations where parties are unable to form a government or the government has collapsed can be separated from skirmishes involving defecting MLAs.

The Bommai judgment did not eliminate Article 356’s opportunistic potential. Small or precarious majorities in state governments remain vulnerable to partisan applications of this rule. Furthermore, the Union government has demonstrated its ability to bypass Article 356, as seen in Jammu & Kashmir since 2019. President’s Rule, imposed in 2018 when Mehbooba Mufti’s coalition government fell, was lifted in 2019 after Jammu & Kashmir became a Union Territory. Yet even after four years, no legislative assembly elections have been held in Jammu & Kashmir, which is still governed by a lieutenant governor who reports to the Union home ministry.

The significance of Bommai lies in its success in curbing the Union government’s arbitrary actions. The judges made Article 356 proclamations justiciable without undermining the President’s discretionary powers, thus strengthening India’s federalism without diminishing its separation of powers.

Shruti Rajagopalan is a Senior Research Fellow at the Mercatus Center at George Mason University. Abishek Choutagunta is a Researcher at the Institute of Law and Economics, University of Hamburg. Christian Bjørnskov is a Professor at the Department of Economics at Aarhus University. Stefan Voigt is the Director of the Institute of Law and Economics, University of Hamburg

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