april 23, 2016

Usurping Power
The union government is ominously misusing Article 356 of the Constitution.

he dismissal of the Harish Rawat-led government in Uttarakhand is not the first instance when Article 356 of the
Constitution has been abused. It was done over a hundred
times until the Supreme Court, in the S R Bommai case, overruled its earlier judgment (in the State of Rajasthan and Others v
Union of India (1977) case) that such decisions by the President
were beyond the Courts reach. Since then it is settled law that
the basis on which the President arrived at a decision that the
constitutional scheme had broken down in a state and hence
warranted imposition of central rule is subject to scrutiny by the
higher judiciary and is justiciable.
The Bommai judgment also clarified a few other things: that
any dispute over a state government enjoying majority had to be
resolved only on the floor of the assembly and that the state
assemblies shall not be dissolved until both houses of Parliament
endorsed such a move. It is worth recalling that the judgment,
while declaring the dismissal of S R Bommais government in
Karnataka (in 1989 after some of his party members of the legislative assembly announced withdrawal of their support to him as
chief minister) as unconstitutional, also upheld the decision to
place Uttar Pradesh, Madhya Pradesh, Rajasthan and Himachal
Pradesh under central rule in the aftermath of the Babri Masjid
demolition on 6 December 1992 as necessarily within the scope
of Article 356 of the Constitution. The apex court, then, had arrived
at this after scrutinising the basis on which the union cabinet had
recommended imposition of Presidents rule in those states.
The Congress, historically guilty of starting and perpetuating
such abuses, did appear to refrain from its temptations since
then; one instance when the party did attempt mischief in Uttar
Pradesh was when the then Governor, Romesh Bhandari, played
along to dismiss Bharatiya Janata Partys (BJP) Kalyan Singh and
make Jagdambika Pal of the Congress the chief minister, but only
for three days. The game ended after the Allahabad High Court
ordered a comprehensive floor test which Pal lost. The BJP invoked Article 356 in Bihar to dismiss Rabri Devi in February 1999
and yet revoked its decision after it was certain that this decision
would be defeated in the Rajya Sabha.
Article 356 ought to have been invoked, at least once since
then; in 2002 after the secular foundations of the republic were
shaken so badly in Gujarat. The apex court, in the Bommai case,
was explicit in spelling out that secularism is part of the basic
Economic & Political Weekly

EPW

april 23, 2016

vol lI no 17

structure of the Constitution. But then, Article 356 was not used
in 2002 against the government of Chief Minister Narendra Modi
by the then union government led by Atal Bihari Vajpayee, for
obvious reasons.
The abuse of Article 356 to remove state governments run by
parties in opposition to the one ruling in Delhi had become rampant. Beginning with the dismissal of the first elected communist
government in Kerala in 1959, playing ball with the various nonCongress governments across states during 196770, the dismissal by the Janata-led centre of all Congress state governments in
1977 (when the matter was first taken to Court and the judiciary
decided to stay away from the thicket), a repeat of it in 1980 after
Indira Gandhis return, the unseemly dismissal of N T Rama Rao
in Andhra Pradesh in 1984 (which Indira Gandhi was forced to
rescind after mass agitations), the repeated games of this kind in
Jammu and Kashmir and until the apex court decided in the
Bommai case (in 1994), were only to score partisan political goals.
After the Bommai judgment, it did appear that such blatant
abuse of a constitutional provision to serve partisan political
ends was no longer possible. This was hardly the case. And the
present National Democratic Alliance government has resurrected the spectre of Article 356 misuse by its actions in Arunachal
Pradesh and Uttarakhand.
What is particularly surprising is the haste with which the
toppling game was carried out. Harish Rawat was removed just a
day before the state assembly was to take up the confidence vote
test as ordained by the Constitution. And in the given situation
after the speaker had disqualified the nine Congress rebels
from the house as per the provisions of the Constitutions Tenth
Schedulethe outcome was clear: Harish Rawat would have sailed
through. The way out then was to remove him, instal another
chief minister who would make ministers out of all the dissidents
(as Kalyan Singh had done in Uttar Pradesh when he headed a
jumbo cabinet of 93 ministers) and thus add one more state to
the list of BJP-ruled and Congress-mukt. The BJP is well within
its rights to raise slogans such as Congress-mukt Bharat; the
Constitution guarantees this right to anyone. But then, the union
government, with all its might, does not have the right to trample
upon the Constitution and this they are guilty of in Uttarakhand
as the Uttarakhand High Court has also observed in strong
language while reinstating the Harish Rawat government.