Origin of Indian Federalism
It is very important to know the historical legacies in the shaping of any polity. Prior to the formation of the Constituent Assembly, the Cabinet Mission Plan emphasized on a Central Government with very limited powers to be confined to foreign affairs, defense and Communication. In contrast, the Muslim League and the Indian National Congress did not agree to this. Despite of this, the first report of the Constituent Assembly envisaged a weak center upon the encouragement of Cripps and Cabinet Mission Plans. It was the passing of India Independence Act and the subsequent partition of India which made the Constituent Assembly to take up a more unitary version of federalism.
A healthy compromised was reached which resulted in a balance of power between the Centre and the State, and India was thus described as Union of States‘ and this union being indestructible. The structure prescribed for Union as well as State governments with a single citizenship policy rather than dual citizenship.
The foundation of India‘s present day federal system is found in the government of India acts of 1919 and 1935.
In the Act of 1919, it was for the first time the state and central subjects were separated from each other for legislative, financial and administrative purpose.
The Act of 1935 was a precursor for the federal state which eventually became a part of the constitution of India in 1950. According to the Act of 1935 the Indian Federal state will consist of both the British Indian provinces and the princely states. It was designed to establish a centralized federation with a fair amount of provincial autonomy. The unified legal and financial system, machinery for the resolution of water disputes, governors for the state and article 356 are also some of the distinctive features of the constitution today that we owe to the act of 1935.
Similarities between GoI Act 1935 and the present day Federal Model:-
This Act laid down the foundations of federal form of government in India.
It provided for the distribution of legislative powers between the Union and the provinces (the structure at that time).
These provisions were laid down for promoting harmony and resolving differences between the provinces.
The Act further maintained for a sense of cooperative relationships amongst the provinces.
Getting into nuances of this Act, Sections 131, 132 and 133 laid down provisions for resolving the water related disputes. Basically, these provisions dealt with the problems relating to inter Province Rivers and river valleys. On the other hand, Section 135 of the 1935 Act laid down provisions for the creation of councils to deal with the coordination between the various provinces of the British India. The need for creating a cooperative relation between the provinces was felt even before the independence.
The Indian Constitution has incorporated the principles in a detailed form which were actually laid down under the 1935 Act. These are the foundations over which the structure of federalism was established by the members of constituent assembly.
Nature of Indian Federalism
A Matter of Controversy exists in the opinion of scholars regarding the nature of Indian Federalism. Some scholars describe India as a quasi-federal state, and some even regard it as more unitary than federal. It is really a debatable issue.
- K.C.Wheare, a well-known British authority on federalism, says, “the Constitution is quasi-federal,”and classifies India as “a unitary state with subsidiary federal principles rather than a federal state with subsidiary unitary principles.”
- Sir. Ivor. Jennings feels, that India is a federation, with a strong centralizing tendency.
- For Norman D. Palmer, “The Republic of India is a federation, although it has many distinctive features, which seem to modify the essentially federal nature ofthe state.”
- According to K.M.Munshi, the constitution made India “a quasi-federal union invested with several important features of a unitary government.”
- P.B.Gajendragadkar, a former Chief Justice ofIndia, opined that though the Constitution “part takes of some of the characteristics of federal structure, it cannot be said to be federal in the true sense of the term.”
6. W.H.Morris Jones, held the view that “Indian federalism was a kind of cooperative federalism where bargaining took place between the centre and the states, but ultimately a solution came out and both agreed to co-operate.”
Unitary Features of the Indian Constitution:
The framers of the Indian constitution have made the central government very strong.
To realize the powerful position of the central government, it is necessary to discuss the unitary features of the Indian federal system. The following discussion has been devoted to describe the unitary features of the Indian federal system.
The makers of the Indian constitution have provided only a single citizenship. But usually the federal constitutions provide dual citizenship, that is, national, and state citizenships. Among the world federations, the United States and the Swiss Republic provide the dual citizenship. In case of America, the citizen ofNew York is also a citizen of the United States of America. The Swiss constitution also provides for dual citizenship. The Swiss citizen is naturally a cantonal citizen too. Though the Indian constitution provides the concept of dual polity, in this case it has departed from the federal principle. In the United States, the constitution made a logical provision for the double citizenship, a double set of officials and a double system of Courts. The Indians, in whatever the states they might have been bom, are called the Indian citizens.
A Strong Centre:
In India, the centre is very strong. Though our constitution has adopted the federal principles, it has been gradually heading towards a strong centralized constitution. Our constitution clearly democrats the division of powers between the centre and the states. The distribution of powers is presented in the eleventh part of the constitution. The three lists are embodied in the seventh schedule of the constitution. The union list consists of 99 subjects. The state list covers 61 subjects and the concurrent list consists of 52 subjects. The residuary powers are with the centre. In America, Australia and Switzerland the constitution has specifically enumerated the powers of the federal government. In all these federations, the residuary power rests with the states. Our constitution follows the Canadian model. The centre and the state has powers to make the laws on the concurrent list, but if there is a conflict between the two, then the central law will prevail over the state law. This shows that the centre is strong in India.
Single Constitution for Union and States:
The framers of the Indian constitution hammered out a single constitution for the union and the states. Usually, under a federal system, the states have their own constitution separate from that of the union. But unlike other federations of the world, the Indian states have not been permitted to frame their own constitutions. Unlike the American States, the States in India have had no voice in initiating the amendment to the constitution. This power exclusively vests in the Indian Parliament. Some eminent political scientists have criticized their non federal principle under the Indian federal structure.
Centre can change Name and Boundaries of States:
In a federation, the centre has no right whatever to change die boundaries of the states. But in India the centre has a right to change the boundaries of the state and to carve out one state out of the other. In the fifties, Andhra Pradesh was carved out of the then Madras state. There is perhaps no state whose boundaries have not been changed at one stage or another. The right of the centre to change the boundaries of the states is against the federal set up.
A Single Judiciary:
In India, there is a single unified judiciary. This system has been working since 1950. The Supreme Court is the highest Court in India and it is at the apex of the judiciary hierarchy. But the Indian constitution has adopted a single integrated judicial system. In the United States of America there is a dual system of Court. All the states in America have adopted their own Independent Judicial System. In India, the Supreme Court exercises supervision and control over the functioning of other courts including High Courts. The Supreme Court is known as a Court of record. The writs of the Supreme Court are binding in all the spheres namely, civil, constitutional and criminal. This shows the unitary character of our constitution. It is quite opposite of the American judicial system.
Unitary in Emergencies:
The Indian constitution has given emergency powers to the president. During the time of emergency, the central government will become powerful. Even it makes the laws on the state list also; the states will lose their voice
During emergency, the centre gives financial directions to the states to observe the specified canons of economy. Even the state governments have to reserve the money bills for the consent of the President. Our constitution has given the vast emergency powers to the centre.
Common All India Services:
The constitution has certain special provisions to ensure the uniformity of the administrative system, and to maintain minimum common administrative standards without impairing the federal principle. These include the creation of All India Services such as Indian Administrative and Police Services and placing the members of these services in key administrative positions in the states.
Inequality of Representation in the Council of States:
The traditional and the classical federations have adopted the equal representation to their states in the upper chamber of the National legislature. But the Indian constitution deviates from this traditional principle of providing the equal representation to the states in the upper chamber of federal legislature. In America, the true federal principle has been followed. The American legislature is known as ‘the Congress’. The upper chamber is called ‘the Senate’. There is equal representation to all the states in the Senate.But in India, the states have no equal voice in the Rajya Sabha. The representation depends upon the population of the concerned states.
Appointment of Governor by President:
The President appoints die Governors of the concerned states. They hold office during the pleasure of the President. In America, the Governor of the States are elected directly by the people. In India, too, this aspect was discussed during the debates of ‘Constituent Assembly’.
The American fathers of the constitution adopted the presidential executive but in India they adopted the parliamentary executive.
This system has been adopted both at the centre and the states in India. Under the parliamentary system of government, the ministers in the states are also elected directly by the people, whereas, the Governor is appointed by the President of India. The Governor is the constitutional head of the state, like the President at the centre. At the state level, the executive authority is vested in the Governor. Article 154 vests all the executive powers with the Governor. Article 200 and 201 of the constitution empower the Governor to withhold his assent to a bill passed by the concerned state legislature. Sometimes the Governor reserves the bill for the President’s consent. This again shows the Central’s dominating power over the state administration.
Thus, the Indian federalism was devised with a strong centre; Federalism with a strong centre was inevitable as the framers of the Indian constitution were aware that there were economic disparities among several areas of India in comparison to others. The nation was committed to a socio- economic revolution not only to secure the basic needs of the common man and economic unity of the country but also to bring about a fundamental change in the structure of Indian society in accordance with the egalitarian principles. With these considerations in mind the constitution makers devised the Indian federation with a strong union
Comparison with other federal models
The founding fathers built the fabric of Indian Federalism on -three pillars, viz., a strong Centre, flexibility, and co-operative federalism. These concepts are not in any way novel as in varying degrees they have come to be accepted, and translated into practice, in the federations of the U.S.A., Canada and Australia.. The framers of the Indian Constitution learned a good deal from the experiences – the problems faced and solutions found – of these federations, and their approach to the structuring of Indian Federalism was conditioned in good measure by that knowledge. It might therefore be worthwhile to have a brief survey of the trends in these federations as a background to the Indian Federalism.
The American Constitution, drafted in 1787, is the oldest of the contemporary federal constitutions. The motivating forces which promoted federalism amongst the several colonies were defence and the felt-need to keep down economic barriers among them. The U.S. Constitution follows a simple method of dividing powers between the Centre and the States.
It has only one list enumerating eighteen heads of powers for the Centre, whose powers are thus specific and include such items as taxation and spending, payment of debts, regulation of foreign and interstate trade and commerce, coinage and currency, war and defence, post office and, post roads, promotion of science, etc.
The Congress is authorised to make a law which may be “necessary and proper”. to carry into execution any of the enumerated powers. Whatever does not belong to the Centre belongs to the States. From an agricultural community of the 18th century, the U.S.A. has emerged into an industrial giant of the 20th century. In the meantime, the political philosophy has changed from laissez faire to social welfare. The country has met the challenges of wars and depression. This has been possible because the Centre, a very small affair to begin with, has grown into a colossus and dwarfed the States. This transformation has taken place through no formal amendments of the Constitution – because of the rigidity of the amending process
The Centre has full control over foreign affairs, and can implement a treaty, ratified, by the Senate, irrespective, of the fact whether its subject matter falls within its, enumerated powers or not.
Co-operative Federalism in the USA
Without this, the U.S.A.- would not have gained supremacy in the international arena. The Centre can take any measures for the defence and to enter into war which may appear to promote,defence. Taxing powers have been found’ to be broad-based and the Centre is thus in, a position to raise vast amounts of revenue.In lieu of the vast revenue raising powers, the Centre has been able to support the states in their welfare efforts. The mechanism of grants has helped the States in providing better services to the people than what their own resources would have permitted, and it has enabled the Centre to influence an area of governmental operations much larger than its own enumerated powers. A kind of Centre-State partnership to promote people’s welfare has thus come into existence which has transformed the whole concept and character of federalism. In the beginning, the Centre-State relationship was that of competition, each trying to claim more powers for itself, but this has now given place to co-operative federalism
The States, though by no means unimportant in the country’s constitutional and administrative processes, have however come to occupy a position somewhat inferior to the Central Government whose primacy is now an established fact.
Federal Experience in Canada:-
In Canada, the growth of federalism has been too-much influenced by the existence of bi-racialism and bi-linguism, English and French. The English-speaking people, a majority in the country, want a strong centre, but the French-speaking people, who are a minority of the entire country but a majority in Quebec, desire the Centre to be weak and the Provinces strong, so that their language and culture are preserved
The Centre is confined within the area of its enumerated heads in sec. 91 of the British North America Act that serves as the constitution of Canada.
The Provinces have thus come to have extensive powers in such fields as businessl,labour, social services, roads, conservation and development. It is only in the times of an emergency of war that the Centre’s general power becomes omnipotent and, to this extent, the designs of the founding fathers may be said to have been respected, but during peace-time the Centre finds, itself handicapped in several ways. It cannot implement through legislation any treaty with a foreign country if its subject-matter falls outside the enumerated heads. The Centre’s limited capacity to meet the socio-economic problems of an industrial society was very, demonstrably brought home during the depression of the 30’s when a good deal of Centre’s new deal was judicially held to be unconstitutional as it infringes into the functions of the state governments.
The development of Canadian Federalism has been in striking contrast with that of the American Federalism. In the latter, the Centre designed to have, limited powers has grown into a colossus, while in the former, the Centre designed to be strong has turned out to have only restrictive capacity to deal with the problems of a fast developing economy. On the other hand, some of the Provinces, at any rate,, find it difficult to discharge their functions with their limited financial capacity. This imbalance is sought to be rectified through various expedients, viz. delegation of legislative power by Parliament or a Provincial Legislature to a subordinate agency of the other and a limited growth of co-operative federalism. Central provides grants-in-aid to ‘the Provinces. These techniques have inducted some flexibility. into an otherwise rigid constitution, whose amendment is extremely difficult owing to the opposition to any shift of balance of power in favour of the Centre by the French-speaking Quebec.
The Australian Model of Federalism
In Australia, the Centre has specified functions but, on the whole, the judiciary has given them an expansive interpretation.
A powerful Centre:
Under its defence power, the Centre assumes a very dominating position during a war. It has full control over external affairs and can implement any treaty, it may choose to enter, with a foreign country.
Its powers over commerce and arbitration of industrial disputes give it power to deal with problems of interstate trade and commerce.
But not at all times..
There is, however, a feeling that in peacetime, the Centre lacks adequate power to deal with socio-economic problems facing the country and efforts to amend the Constitution to correct the lacuna have not succeeded because of an extremely rigid process of constitutional amendment.
The country has however made notable contribution to the concept of co-operative federalism by evolving & a system of fiscal grants to those States which are in need of help through the agency of the Commonwealth Grants Commission and also by creating a Loan Council for coordinating borrowing by the various governments.
What do we understand from these other federal systems?-Takeaways to apply to the Indian Federal Scheme
A careful study of the trends in the above-mentioned federal systems enabled the framers of the Indian Constitution to draw a number of lessons.
First of all, in each federation need has been felt to have a strong Centre to deal with war-emergency or the socio-economic problems of an industrial society, and this need has been fulfilled in varying degrees in various countries.
Secondly, the prevailing federal systems are extremely rigid, and formal amendments to the respective constitutions have been difficult, creating a need to introduce flexibility through various expedients to meet contemporary needs. In the U.S.A. and Australia, the judiciary has helped in giving an interpretation to the Centre’s powers so as to enable it to meet the problems of the day, but this has not obviated the need to amend the Constitution which has proved to be extremely difficult.
Lastly, the growth of the concept of co-operative federalism in varying degrees in each country is a phenomenon of the day, which helps a federal system, with its divided jurisdiction, to solve many problems which have arisen as a result of the philosophy of a social welfare State.
It is therefore not surprising that the founding fathers should have designed the Indian federal structure on the three concepts of a strong Centre, flexible federation, and co-operative federalism. However, in fashioning the. system, they not only adopted some of the expedients prevalent in other countries but also showed originality by devising some new techniques of,their own which can be characterized as a distinct Indian contribution to the practices of federalism in general.
Apart from the experiences of other countries suggesting a strong Centre, there were some very good indigenous reasons in India for the same.
Why an inclination towards a stronger Centre?
The past history of India conclusively establishes that the absence of a strong Centre leads to a disintegration of the country. Memories of one partition on the eve of independence were very fresh, and this warranted the taking of adequate precautions to ensure unity and prevent any fissiparous tendencies. There was also the problem of defence looming large on the horizon due to the not so friendly attitude of Pakistan.
Above all, India is an underdeveloped country whose socio-economic progress has been retarded for centuries. The framers of the Constitution foresaw that the country would have to force the pace of economic development so as to compress into decades the progress of centuries, and this could be done effectively by mobilising national resources and using them properly under Central leadership. A unitary constitution could not have been adopted because of the vastness. of the country and the variety of its people and, therefore, the next best course was to have a federal structure with a strong Centre.
The approach of the fathers was thus pragmatic, keeping in view the unity and welfare of the country as the objectives to be promoted.The emphasis on a strong Centre was facilitated by two factors – the historical background of the country and the existence of one unified all India political party.
For a long period before independence, British India had been governed as a unitary entity, and although in 1937 federalism was sought to be introduced under the Government of India Act, 1935, it never worked in practice as, under the impact of the Second World War, India was administered more as a unitary, rather than a federal, country under the emergency powers of the Centre. In fact, as regards British India, the movement may be said to be from, unity to union, from unitarism to federalism. But, at the same time, a reverse process was also undertaken, namely that of integration of the princely India with the rest of the country.
The present-day Indian federalism is thus the product of two processes, that of disintegration of British India from a unitary to a federal system and that of assimilating the hitherto autonomous princely India with the rest of the country. As to the political party, because of the national struggle for independence against the British, Congress had built up a broad mass organization spreading throughout the country, and all the governments at the time of the making of the Constitution owed allegiance to it and it was the predominant party in the Constituent Assembly.The strength of the Centre lies in its large legislative and financial powers, in its emergency powers and in its control over State Legislation in certain situations. The flexibility of federalism lies in certain expedients which can be used to mitigate the proverbial rigidity of a federal system and to increase the Centre’s powers as a temporary adjustment if a situation so demands. As noted above, in other federations, the Centre has felt handicapped at times to take effective action to meet the socio-economic needs; this is sought to be avoided in India by having built-in mechanism to enable the Centre to get more powers without resorting to a formal amendment of the Constitution. Even the method of amending the Constitution is rather flexible. In its federal features, it can be amended by each house of Parliament passing a bill by a special majority and on the same being ratified by one-half of the State Legislatures and receiving the President’s assent. Although it may be that, in the changed political complexion of the country the needed State concurrence may be difficult to obtain to a proposed amendment; yet, on the whole, this Procedure would not prove as intractable as the amending procedures in Australia and the U.S.A. The concept of co-operative federalism has been worked out in a number of ways. There is also the judiciary with powers to interpret the Constitution and thus to draw the necessary balance in accordance with the needs of the times.
Are the states subservient to the Centre?
But, it needs to be stated that this should not lead to the impression that States are completely subservient to the Centre.They have their own powers; they do not exist at the mercy of the Centre but claim their status from the Constitution, and many conventions have been evolved making them more autonomous in practice than what they look to be in theory.
The compulsion of democratic politics also ensures that the states are taken into confidence by trust building and making them partners in development process rather than by the Centre threatening to use its reserve powers.
It might therefore be misleading if one were to take his ideas about the Indian Federalism merely from the constitutional text. For drawing a balanced picture, one has to search for practices and operating forces underneath the surface of the formal constitutional provisions.
What is emergency?
The term emergency connotes a sudden, urgent, usually unforeseen event or situation, which requires an immediate action, often, without having time for prior reflection and consideration.
In Constitutional terms,Emergency recognizes the right of every sovereign State to take all reasonable steps needed to protect and preserve the integrity of State.
There is hardly any modern constitution which does not recognize the right of the executive to suspend the normal rule of government including the rights and freedoms of citizens, during periods of crisis
Emergency Provisions of the Indian Constitution:-
Part XVIII of the Constitution of India speaks of emergency provisions. The emergency provisions therein can be classified into three categories:
1. Articles 352, 353, 354, 358 and 359 which relate to emergency
- Articles 355, 356 and 357 which deal with imposition of the President’s rule in States in a certain situation and
3. Article 360 which speaks of financial emergency
Art 356 -President’s Rule- An Analysis
Article 356, was inspired by sections 93 of the Government of India Act, 1935. Section 93 of the 1935 Act provided that if a Governor of a province was satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the said Act, he could, by proclamation, assume to himself all or any of the powers vested in or exercisable by a provincial body or authority including the Ministry and the Legislature and to discharge those functions in his discretion. The only exception was that under this section the Governor could not encroach upon the powers of the High Court. These two provisions were incorporated in the 1935 Act to meet certain purposes and exigencies.
Constitutional provisions related to Emergency under Article 356:-
Article 355 imposes an obligation upon 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”. The Constitution does not expressly provide as to how the duty of the Union to protect a State against external aggression and internal disturbance is to be carried out; it is left to the judgment of the Union how to meet any such situation.
Article 256 carries the marginal heading “Provisions in case of failure of Constitutional machinery in States”. But neither clause (1) nor any other clause in the Article employs the expression “failure of Constitutional machinery.
On the other hand, the words used are similar to those occurring in Article 365, namely, “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution”.
On what Grounds can an Emergency under article 356 be imposed?
The consitution does not express in clear words, the different circumstances under which the President’s rule under Art 356 can be imposed. Until the S.R.Bommai Judgment, the following were the common grounds under which President’s Rule continued to be imposed.
- Political breakdown and political deadlock: This is a point which requires careful analysis. A political breakdown can happen when no Ministry can be formed or the Ministry that can be formed is so unstable that the Government actually breaks down, or where a Ministry having resigned, the Governor finds it impossible to form an alternative Government, or where for some reason or the other the party having a majority in the Assembly declines to form a Ministry able to command a majority failed.
- When the party alignment in the State is such that no stable Government can be formed.
- When the breakdown occurs owing to the Ministry in the State refusing to follow the directions of the Centre.
- There may be physical breakdown of the Government in a State, as for instance, when there is a widespread internal disturbance, violence or revolt in the State, or external aggression or for some reason or the other, law and order cannot be maintained or disturbance and chaos occurs in the State.
- There is another contingency of economic breakdown.
- When “The State’s economic plans may be contrary to the economic programmes of the Centre.”
- “When the Ministry is absolutely corrupt and is misusing the machinery of the Government for dishonest purposes but is firmly saddled in power backed by a comfortable majority.”
- “There may be mass violence with sympathy of the Party in power of the State. The other circumstances that may lead to political instability and breakdown of the Parliamentary system of Government are:
- Miscellaneous Issues
(a) Defections by the members of the legislature.
(b) Passing of no-confidence motions against the Council of Ministers.
(c) Resignation of the Chief Minister for various reasons.
(d) Absence of legislatures in the newly-formed States.
(e) Public agitations in State leading to instability in the administration
Wrongful Use of Emergency provisions under Art 356:-
- When Ministry Commanded Majority:
President’s Rule was imposed in 13 cases even though the Ministry enjoyed a majority support in the Legislative Assembly. These cover instances where provisions of Article 356 were invoked to deal with intra-party problems or for considerations not relevant fro the purpose of that Article. The proclamation of President’s Rule in Tamil Nadu in 1976 and in Manipur in 1979 were on the consideration that there was maladministration in these States.
- Chance not given to form alternative Government
In as many as 15 cases, where the Ministry resigned, other claimants were not given a chance to form an alternative Government and have their majority support tested in the Legislative Assembly. Proclamation of President’s rule in Kerala in March 1965 and in Uttar Pradesh in October 1970 are examples of denial of an opportunity to other claimants to form a Government.
- Wholesale dismissal of Ministries
To the above two categories must be added another category of wholesale dismissal of State Governments and State Legislative Assemblies. Soon after a new Lok Sabha came into existence following the general election held in march 1977, bringing into office the janta party Government, State Governments and legislative Assemblies of nine States, as mentioned above, were dismissed/dissolved. Again after the Congress party returned to power in 1980, State Governments and Legislative Assemblies in nine States were dismissed/dissolved. The ground on which they were dismissed is identical in both cases, namely, that the elections to Lok Sabha have disclosed that the people have lost faith in the parties which were holding office in nine States, the Congress parly has almost been totally rejected by the electorate in the elections to lok sabba which showed the disenchantment of the people with the Congress Governments in those States. An identical argument was employed in 1980 against the non-Congress parties.
A few other examples of misuse of Art 356 provisions to use in the exam
Article 356 was invoked in the following instances after the, sarkaria Commission Report was submitted :
- Assam (27.11.1990- deterioration of the law and order situation),
- Nagaland (2.4.1992) – fluid party position and deteriorating law and order situation), Nagaland (7-8-1988), (Karnataka – 21-4-1989) and Meghalaya (11-10- 1991) these three cases are dealt with by the Supreme Court in S.R.Bommai and held to be totally unconstitutional and unsupportable,
- Bihar (28-3-1995 – process of election could not be completed; to facilitate passage of vote on account by Parliament). U.P (1996) no clear majority in election) and
- Tamil Nadu (30-1-88 – Deadlock due to death of Sri M.G. Ramachandran)
- Mizoram (7-9-1988 – Defections reduced the Government to minority),
- Jammu and Kashmir (18-7-1990 – Militancy),
- Karnataka (10-10-1990 – dissensions in the ruling party floor crossing),
(h) Goa (14-12-1990 – C.M. resigned consequent upon his disqualification by High Court – No other Government found viable),
Judiciary to safeguard the misuse of Art 356 provisions-S.R.Bommai case
It follows from the facts Stated above that more often than not power under Article 356 was exercised wrongly. The Supreme court proceeded to precisely check this abuse through its decision in S.R. Bommai case (AIR 1994 SC 1918). Though in the said decision no effective relief could be given to the State Governments and the Legislative Assemblies which were wrongfully dismissed/dissolved in view of the fact that pending the proceedings in the courts, fresh elections were held in those States, yet the court put the central Government on notice that in case of a wrong dismissal of the State Government and/or a wrong dissolution of the Legislative Assembly, the court does have the power, and that it will not hesitate, toe restore such Government/Assembly back to life.
Has the Judicial Verdict led to better outcomes?
The result has been that since the said decision, the use of Article 356 has drastically come down. Indeed in the year 1999 when the Central Government recommended to the President to dismiss the State Government in Bihar, the President called upon the Central Government to reconsider the matter in the light of the principles enunciated in the said decision. On a reconsideration of the matter, the Government withdrew the proposal.
We may also refer to yet another decision where the Governor of U.P. chose to dismiss arbitrarily the State Government without allowing the Government to test its majority on the follow of the House. Following the principles enunciated in S.R.Bommai, the Allahabad High Court restored the dismissed Government to its office (W.P. 7151 of 1998 disposed of on 23 February, 1998). This decision was not disturbed by the Supreme Court in appeal though it purported to evolve a peculiar kind of floortest, namely, both the contenders for the office of Chief Minister were asked to these their strength on the floor of the House. The Chief Minister who was dismissed wrongfully by the Governor established his majority and continued in office (A.I.R. 1998 Supreme court 998)
Principles laid down in S.R.Bommai Judgment wrt Art 356
- Article 356 should be used very sparingly, in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or rectify a breakdown of Constitutional machinery in – the State. All attempts should be made to resolve the crisis at the State level before taking recourse to the provisions of Article 356. The availability and choice of these alternatives will depend on the nature of the Constitutional crisis, its causes and exigencies of the situation.
- A warning should be issued to the errant State, in specific terms, which it is not carrying on the Government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into account. However, this may not be possible in a situation when not taking immediate action lead to disastrous consequences.
- When an external aggression or internal disturbance paralyses the State administration creating a situation drifting towards a potential breakdown of the Constitutional machinery of the State, all alternative courses available to the Union for discharging its paramount responsibility under Article 355 should be exhausted to contain the situation.
- (a) In a situation of political breakdown, the Governor should explore all possibilities of having a Government .enjoying majority support in the assembly. If it is not possible for such a Government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, if there is one, to continue as a caretaker Government, provided the Ministry was defeated sole on a major policy issue, unconnected with any allegations of maladministration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the Constitutional crisis to the electorate. During the interim period, the caretaker Government should be allowed to function. As a matter of convention, the caretaker Government should merely carry on the day to day Government and desist from taking any major policy decision. (b) If the important ingredients described above are absent, it would not be proper for the Governor to dissolve the Assembly and install a caretaker Government. The Governor should recommend proclamation of Presidents rule without dissolving the Assembly.
- Every proclamation should be placed before each house of parliament at the earliest, in any case before the expiry of the two months period contemplated in clause (3) of Article 356.
- The State Legislative Assembly should not be dissolved either by the Governor or the President before the proclamation issued under Article 356(1) has been laid before Parliament and it has had an opportunity to consider it. Article 356 should be suitably amended to ensure this.
- Safeguards corresponding, in principle, to clauses (7) and (8) of Article 352 should be incorporated in Article 356 to enable parliament to review continuance in force of a proclamation.
- To make the remedy of judicial review on the ground of malaiides a little more meaningful, it should be provided, through an appropriate amendment, that, notwithstanding anything in clause (2) of Article 74 of the Constitution the material facts and grounds on which Article 356 (1) is invoked should be made an integral part of the proclamation issued under that Article. This will also make the control of Parliament over the exercise of this power by the Union Executive more effective.
- Normally, the President is moved to action under Article 356 on the report of the Governor. The report of the Governor is placed before each House of Parliament. Such a report should be a “speaking document” containing a precise and clear Statement of all material facts and grounds on the basis of which the president may satisfy himself as to the existence or otherwise of the situation contemplated on Article 356.
- The Governor’s report, on the basis of which a proclamation under Article 356(1) is issued, it should be given wide media publicity
- Normally, President’s rule in a State should be proclaimed on the basis of the Governors report under Article 356(1).
Recommendation of NCRWC:-
It is advisable to suggest that Art 356 be amended to provide for the following:
- It should be provided that until both houses of Parliament approve the proclamation issued under clause (1) of Article 356, the Legislative Assembly cannot be dissolved. If necessary it can be kept only under animated suspension.
- Before issuing the proclamation under clause (1), the president /the central Government should indicate to the State Government the matters where in the State Government is not acting in accordance with the provisions of the Constitution and give it a reasonable opportunity of redressing the situation – unless the situation is such that following the above course would not be in the interest of the security of State or defence of the country.
- The proclamation must contain the circumstances and the grounds upon which the President is satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Further if the Legislative Assembly is sought to be kept under animated suspension or dissolved reasons for such course of action should also be Stated in the appropriate proclamation.
- Whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly and nowhere else. If necessary, the Central Government should take necessary steps to enable the Legislative assembly to meet and freely transact its business. The Governors should not be allowed to dismiss the Ministry so long as it enjoys the confidence of the House. Only where a Chief Minister of the Ministry refuses to resign after his Ministry is defeated on a motion of no confidence should the Governor dismiss the State Government.
The central Government like the State Governments is a party Government. It has often used Article 356, not for the, purpose envisaged in the Constitution only but also to meet their political ends. At times President’s rule has only been an instrument to bring in the shift of power at the State Level from one political party to another after elections, but more often than not it has been an attempt to change the leadership of the Government at the State level from the non ruling party to the ruling party at the centre. It has also been used by the party in power at the centre to change leadership at the State level from one political faction to another and even in order to provide for shift of power form one individual to another.
Article 356 provides for imposition of President’s rule in the States to combat a situation in which the Governance of the State cannot be carried on in accordance with the provisions of the Constitution.’ The expression “in accordance with the provisions of the Constitution” is ambivalent and vague. Even the farmers of the Constitution felt it to be so and questioned Dr. Ambedkar about its meaning. Dr. Ambedkar, however, evaded answering the question by resorting to legal sophistry. This evasion was to cost India dear.
The power to dismiss the duly elected Government of a State, even while it is enjoying the confidence of the Legislative Assembly is a concept which no believer in democracy can easily accept.
Justice V.R. Krishna Iyer termed Article 356 of the Constitution a “live poison” that has been used by the party at the centre to dismiss State Governments that are not to its liking.
Soli Sorabjee, an eminent advocate and a former Solicitor General, critically opined that Article 356 has been constantly used for partisan political ends and has subverted democracy in the States as well as the federal character of the Constitution.
In any event, the stage has not yet arrived in our Constitutional development, where we can think to delete Art. 356. What is required is its proper use and that has not yet arrived in our Constitutional development, where we can think to delete Art. 356. what is required is its proper use and that has to be ensured by appropriate amendments to the Article. It needs to be remembered that only the spirit of cooperative federalism can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority. Under our Constitutionals system, no single entity can claim superiority.
Sovereignty doesn’t lie in any one institution or in any one wing of the Government. The power of governance is distributed in several organs and institutions – a sine qua non for good governance. Even assuming the Centre has been given certain supra dominance over the States, that dominance should be used strictly for the purpose intended. An unusual and extraordinary power like the one contained in Article 356 cannot be employed for furthering the prospects of a political party or to destabilize a duly elected Government and a duly constituted Legislative Assembly. The consequences of such unfair and improper use may not be evident immediately.