Should President rule be imposed in Maharashtra
Anurag deep
Associate Professor
The Indian Law Institute, New Delhi
Kangana Ranaut incident
In Maharashtra there is demand to impose President rule which has gathered momentum after the Bombay Municipal Corporation (BMC) has demolished a part of the office of Kangana Ranaut, an Indian actress on sept 9, 2020. She commented on the functioning of the Maharashtra government on Sushant Singh Rajput suicide case. The twitter war between her and Shiv Sena leaders turned into abusive exchanges and inappropriate expressions. The Shiv Sena/Congress are in power and they could not tolerate the voice of Kangana Ranaut. To teach her a lesson and silence her voice the govt misused legal machinery, ie BMC which has tried to complete the process of natural justice (giving notice) in haste and demolished a part of office with rocket speed, that too when the writ was pending before the court and the proceeding was going on Sept 9, 2020. It is rightly said that जब नाश मनुज पर छाता है, पहले विवेक मर जाता है. The HC on Sept 9, 2020 has termed the demolition of Kangna property as prima facie mala fide and issued an interim stay. This approach of Maharashtra govt was against all element of rule of law. Rule of law is the basis of the constitution. If rule of law is violated the constitution is also breached. Shiv Sena leaders have also threatened Kangana not to come to Mumbai. This was against the fundamental right of a citizen under article 19 (d) where every citizen has right “to move freely throughout the territory of India.” Moreover she is a resident of Mumbai. Mere case of Kangana Ranaut indicates violation of article 14 (arbitrariness), art 19 (freedom of speech, expression and movement) and art 21 (due process). Maharashtra government is being criticized for not focusing on Covid19 but on other political issues. Shiv Sena goons are also found involved in beating common citizen, veteran army person on VDO, though the goons have been arrested. There was lynching of two saints in Maharashtra. Multiple FIRs are registered against media persons like Arnab Goswami. He and his wife were also attacked.
In the light of this, members of political parties, Governor of Maharashtra, some columnists, intellectuals have started exploring the possibilities of the President rule in Maharashtra under article 356. Despite these incidents, time is not ripe for article 356.
Not a case for Art 356
Art 356 needs breakdown of constitutional machinery. Break down is different from law and order problem. It is also different from stray abuse of power by Govt. Kangana Ranaut case is shameful abuse of legal process to intimidate some one who expresses against the government. Similarly other incidents indicate the weakness of the govt on the front of law and order or public order. It is failure of governance but it is still not breakdown of constitutional machinery. The situation under art 356 needs more serious conditions because a democratically elected govt cannot be dismissed on law and order problem even if it is serious some time.
The legal course open to the central govt is that it may issue a warning to Maharashtra govt, if it feels the things are going beyond control. Under article 355 “it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.” Under article 365 it is stated that 365. “Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.” If the Maharashtra govt fails to address the concern of the central government, this can be a ground for article 356. Otherwise, the State govt commands the confidence of the house. It is yet to be established that the State govt is deliberately involved in illegal activity though there are violations of rule of law. Rule of law is a part of basic feature of the constitution. More such violations on consistent basis will attract art 356.
The SC check
through Bommai and other precedents
The central govt is also aware that in 1994 in SR Bommai case the SC has held that art 356 is the last measure. The action of central govt can be challenged and the central govt will be required to establish that there was no other alternative. Central govt is also aware of what happened in Arunachal Pradesh and Uttarakhand case.
On July 13 2016 a constitution bench of the Supreme Court has declared the President rule imposed in Arunachal Pradesh as unconstitutional. It has restored the previous Congress government. In Uttarakhand also Harish Rawat government was restored few months before Arunachal judgement. These incidents and decisions often reignite the debate on the retention of article 356 in a federal set up.
When can article 356 be applicable
कब ३५६ लागू हो सकता है --
१. Political crisis-राजनैतिक संकट --
अ. The CM has no confidence of the house. दल या नेता को बहुमत का समर्थन नहीं प्राप्त है, या उसे खो दिया है, (केवल इसकी संभावना मात्र से ३५६ लागू नहीं कर सकते, बहुमत नहीं है यह सदन के पटल पर स्थापित होना चाहिये No confidence shall be proved only on the floor of the house).
आ. Post election, the government cannot be formed. चुनाव के बाद सरकार का गठन नहीं हो पा रहा है, क्योंकि त्रिशंकु विधानसभा बनी है या एनी गतिरोध है
२. Government either engaged in anti national activity or fails to stop the activities सरकार राष्ट्र विरोधी कार्य में लगी है या उनके खिलाफ समुचित कदम नहीं उठा रही है
३. The government is supporting unlawful activity or the administrative machinery is being used to some how support it. सरकार की पूरी प्रणाली अवैध कार्यों में लगी है या उसे लगातार प्रत्यक्ष समर्थन दे रही है, प्रणाली का खुल कर दुरुपयोग हो रहा है, या उसे रोकने के लिए समुचित कदम नहीं उठा रही है. पंथनिरपेक्षता के विरुद्ध काम कर रही है, जैसे -१९९२ में अयोध्या में विवादित ढांचे के विध्वंस के क्रम में भाजपा की सरकारों को बर्खास्त कर दिया गया था.
४. The State government declines to implement central laws or executive direction validly given under article 255/365. केंद्र के क़ानूनों को, उसके विधिक निर्देशों को मानने से मना कर रही है, जैसे अन्वेषण संस्था सीबीआई, एन आई ए को सहयोग नहीं कर रही या अनुच्छेद २५५, ३६५ के निर्देशों को नहीं मान रही
५. The orders of the court are not followed deliberately on consistent basis न्यायालय के निर्देश नहीं जान बूझकर नहीं मान रही
६. etc आदि
The constituent assembly wanted article 356 as ded letter box. But it was misused like anything. However after SR Bommai judgement followed by other precedents article 356 seems to be in sleep mode. संविधान सभा में ३५६ को टेड मैटर बॉक्स जैसा कहा गया था.
Desirability of art 356
In a federal democracy such provision prima facie raises various questions. That too when the framers of the Constitution of India after studying all the known constitutions of the world and after many marathon discussions reached to the conclusion that India must not be a unitary state but a federal State (ie. power shall be distributed between Centre and State). The cultural historical, geographical and political reasons played key role in reaching to this conclusion. But, there were certain causes and circumstances which compelled the constitutional experts to think and decide whether the unitary system (where there is one power center) should be totally avoided? They could not make up their mind in affirmative and the majority was of the opinion that any federal system especially India cann’t neglect all the characteristics of a unitary state. Emergency provisions in the constitution of India which gives sweeping power to center over state should be understood in that context.
Background of 356
When the Constituent Assembly commenced its deliberations (9th December, 1946) on a written constitution for India, it was a period of great political upheaval. India was passing through a deep and unforgettably shocking experience of at least three incidents. One, partition, carnage and destruction of people as well as property; Two, the persistence of some erstwhile rulers of Indian states to remain outside the union (India)and to fight for their independence. Third incident is less known which can be found in the work of Fali S. Nariman, “ Protection of Human Rights during emergencies, The Review, International Commission of Jurist. N56/1996, P-3. He quotes the assassination of U Aung San and most of his cabinet colleagues in neighbouring Burma(now Mayanmar) in July 1947. This hydraulic pressure of significant events had their effect. They greatly influenced the draftsmen of the constitution of India; to structure the basic document so as to provide the strong centre armed with special powers. Part XVIII “Emergency provisions: Art 352 to 360 was incorporated with this idea, of which Art 356 is most disputed one. Other three compelling factors which also gave force to the incorporation of Art 356 were the past experience in the U.S. A (viz Pullman Strike case (1894). Due to strike by labours in the State of Illinois railway lines were jam. Cleveland, the President of the USA sent federal troops ‘against the will and without consent’ of the Governor of Illinois State. In a challenged before the US Supreme Court, one of the arguments was the federal government has no authority to encroach the jurisdiction of State government in a federal system. The US Supreme Court in the case of Re Debs (1895), however rejected this argument and decided in favour of federal government. Framers of the constitution of India were aware that similar exceptional situations might arise in India. And central government must be constitutionality and expressly empowered to face those exceptional situations. Second reason was the fact that in 1950 ‘democratic rule based on adult franchise was being introduced for first time. Almost one-third of the country under princely rule had never known elections. Rule of law was a novelty in those areas. The infant democracy required careful nurturing. Many a hiccup was expected in the days to come.’ This perhaps explain the need for a provision like the one in Art 356 that time. Lastly the diversity in India and the strong passion and obsession of people for their sect, language, cast, religion, or region etc could not be overlooked. These were the major factors which helped in the incorporation of Art 356 under which President’s rule can be imposed in any state. The executive and legislative powers of the state is assumed by the Central government and the Parliament in the event of breakdown of the constitutional machinery in the concerned state.
Change in Background
Now the back ground is changed. We have almost forgotten the unfortunate incidents of partition. Electoral democracy is very matured, thanks to election commission and electronic media. Post 1993 we have now four tier system of elections with huge increase in voting percentage. Post Bommai(1994), Rameshwar Prasad(2005), and Arunachal Pradesh case(2016) it is not an easy task for party in power to impose president rule. There are chances that article 356 may go at least in ‘sleep mode’ if not in ‘dead letter’ box. Therefore, the demand that article 356 should be deleted from the constitution. The supporters of federal principles forget that though situations have changed, new situations have arisen. In our country there are at least three States (Punjab, Jammu and Kashmir and Tamil Nadu) which passed almost unanimous resolution in favour of convicted terrorists. A few powerful political parties have shown sympathy for separatist organisations. For States some time, the narrow regional interest is more important than national interest. State titans some time foment fissiparous tendencies on the basis of language, region, caste etc. These are anti-national and anti-democratic tendencies. If any State will be engaged in exciting emotion on these grounds, ‘such provocation has to be nipped in the bud’. Therefore Dr Ambedkar always wanted a strong center. In a recent case of Union of India V Sriharan @ Murugan (decided on 2 December, 2015), the constitution bench has also reiterated that the original intent of the constitution is to give greater say to central government. Due to coalition politics the central government, most of the time, is dependent of regional titans, who are more concerned to their electoral issues even at the cost of national interest. Coalition, three constitution bench judgements referred above, more active judiciary, vibrant media and more effective civil society, therefore, are sufficient checks on the abuse of president rule.
The office of the President should also be more assertive to exercise their power under article 74(1) proviso where ‘President may require the Council of Ministers to reconsider such advice’. As the likelihood of misuse of article 356 is reduced to considerable extent, it should be retained to deal with exceptional situations. Ultimately our constitution is not federal in traditional sense but it is a Uni-federal constitution, ie a federal constitution with leading unitary features to suit exceptional situations.
In case of Maharashtra the risk reward ratio to impose president rule does not favour the central govt.
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