Imposition of President’s rule flies in face of SC guidelines in Bommai case

More than a fortnight after Maharashtra threw up a hung Assembly, President’s Rule was imposed in the state on Tuesday after President Ram Nath Kovind approved Governor BS Koshyari’s request.

Confirming the development, the Ministry of Home Affairs (MHA) said, “Proclamation under Article 356(1) of the Constitution, thereby imposing President’s Rule in relation to the state of Maharashtra and keeping the state Assembly under suspended animation, has been issued.”

The decision came after Koshyari sent a report to the Union government saying President’s Rule must be imposed since no party or alliance was in a position to provide a stable government in the state.

“The Governor said he has made all attempts to see government formation but has not met with any success. The Governor is satisfied that a situation has arisen that no stable government can be formed in the state,” an MHA spokesperson said.

The Shiv Sena, Nationalist Congress Party (NCP) and the Congress criticised the Governor's move on the grounds that Sharad Pawar’s party had time till 8:30 PM to show its numbers and the Governor jumped the gun at the behest of the BJP.

“President's Rule has to be the last resort. There is a huge difference between a party saying, ‘no, I can't form the government’, and one saying, ‘yes, I can but I need more time,” Congress MP and senior advocate Abhishek Manu Singhvi told the media.

The decision to impose President’s rule seems to fly in the face of the judgment passed by the Supreme Court in 1994 in the case titled S. R. Bommai vs Union of India, which raised serious question of law relating to Proclamation of President's Rule and dissolution of Legislative assemblies according to Article 356 of the Constitution of India.

The first and most important question which the Supreme Court had to determine was whether the Presidential Proclamation under Article 356 was justiciable and if so to what extent.

The second contention was whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.

It was contended that since the Proclamation under Article 356[1] would be issued by the President on the advice of the Council of Ministers given under Article 74(1) of the Constitution and since Clause [2] of the said Article bars inquiry into the question whether any, and if so, what advice was tendered by Ministers to the President, judicial review of the reasons which led to the issuance of the Proclamation also stands barred.

Whether the Legislature dissolved by the Presidents proclamation can be revived if the president proclamation is set aside. Whether the validity of the Proclamation issued under Article 356(1) can be challenged even after it has been approved by both Houses of Parliament under Article 356(3).

It was also contended that whether any relief’s can be granted when the validity of proclamation is challenged and whether the court can grant an interim stay against holding the fresh election.

Whether a president can dissolve the legislature without having obtained the approval of both the Houses of the Legislature. It was contended that Secularism being a basic feature of the Constitution, a State government can be dismissed if it is guilty of non-secular acts.

The SC laid down certain guidelines so as to prevent the misuse of Article 356 of the Constitution:

1. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.

2. Centre should give a warning to the state and a time period of one week to reply.

3. The court cannot question the advice tendered by the CoMs to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:

a. Is there any material behind the proclamation

b. Is the material relevant.

c. Was there any mala fide use of power.

4. If there is improper use of A356 then the court will provide remedy.

5. Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.

6. Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery

Article 356 shall be used sparingly by the Center, otherwise it is likely to destroy the constitutional structure between the Center and the states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in the constitution.

Based on the report of the Sarkaria Commission on Centre–state Relations(1988), the Supreme Court in Bommai case (1994) enlisted the situations where the exercise of power under Article 356 could be proper or improper.

Imposition of President’s Rule in a state would be proper in the following situations:

• Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.

• Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.

• Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.

• Where a constitutional direction of the Central government is disregarded by the state government.

• Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.

• Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.

The imposition of President’s Rule in a state would be improper under the following situations:

• Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.

• Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.

• Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980.

• Internal disturbances not amounting to internal subversion or physical breakdown.

• Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.

• Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.

• Where the power is used to sort out intra-party problems of the ruling party, or for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution.