The Uttarakhand High Court’s judgment delivered on Thursday, April 21, setting aside the imposition of President’s Rule under Article 356 of the Constitution in Uttarakhand, is the first instance of a High Court applying the Supreme Court’s judgement in SR Bommai v Union of India. It is not, however, the first instance of a High Court setting aside the President’s proclamation under Article 356. That honour goes to the Madhya Pradesh High Court which set aside the imposition of President’s Rule in Madhya Pradesh, dismissing the then BJP government for having assisted the Ayodhya Movement resulting in the demolition of the Babri Masjid. Coincidentally, that judgment was itself set aside by the Supreme Court in the Bommai ruling, which held that the Centre’s action was justified in light of the violation of the constitutional principle of secularism by the BJP-led Madhya Pradesh government.
It is a matter of fact that Article 356 had been invoked far too frequently and for constitutionally unsound reasons on multiple occasions till the 1990s. From 1950 to 1993 it was imposed a 100 times in 43 years, a little less than 2.5 times a year. The Bommai judgment was an attempt by the judiciary to hold the Central government to the rigour of the Constitution in exercising power under Article 356. It is also a matter of fact that the use of Article 356 has reduced substantially since the 1990s. Between 1994 to 2016, it has been imposed 26 times (including Uttarakhand) in 22 years – that is, a little more than once a year. While some may attribute this to the coalition governments in vogue over the last three decades, the fact remains that the principles laid down in the Bommai case, and the Supreme Court’s willingness to apply them, has played a crucial role.
What the Bommai ruling really does is to introduce some measure of objectivity and reason into the decision making process in imposing President’s Rule in a State. The key trigger to the imposition of President’s Rule in a State is the report of the Governor of that State suggesting President’s rule. The Supreme Court has laid down objective criteria which the Governor has to assess before recommending the imposition of President’s Rule. Whether this means calling for a “floor test” (where the Government proves its majority in the legislative assembly) when the Government is alleged to have lost majority in the state assembly, or clearly listing out the relevant facts on the basis of which constitutional rule is no longer possible in that State, the Governor’s actions have to be to be non partisan and impartial.
The imposition of President’s Rule in Uttarakhand was anything but.
'Irrelevant' and 'extraneous'
As the High Court’s order has listed out, not only was no opportunity given to the State government to prove its majority on the floor of the legislative assembly, the reasons which were afforded by the Governor relating to the sting operation, the allegations of horse trading and defection of MLAs was found to be “irrelevant” and “extraneous”. What perhaps swayed the High Court’s mind on the absence of good faith in the Centre’s dealing was the imposition of President’s Rule a day before the floor test was scheduled. Had the Centre’s imposition of President’s Rule been motivated by a potential constitutional breakdown (and not purely partisan considerations) it should have waited for the floor test to see if the Harish Rawat led government could prove its majority.
Right from the start, the Centre’s legal case justifying the imposition of President’s Rule has been on a weak wicket. President’s Rule can be imposed in one of two situations - where the Government has lost majority and where the Government cannot or is not functioning in accordance with the Constitution. In this case it was neither of the two. At one place, the Centre alleged that the Rawat government had lost majority since it didn’t pass the appropriation bill constitutionally. At another, it alleged that horse trading and other illegalities were taking place. It seemed as though the Centre had a rag-bag of facts that it wanted to pick out from, one by one, to see which the High Court would be most willing to “buy” as a plausible ground for dismissing the Uttarakhand State government.
The Supreme Court’s order today (Friday, April 25) seems to have stayed the effect of the Uttarakhand High Court’s judgment till a signed, official copy of the judgment is released. This means that Rawat’s enthusiasm to take back the reins of power in the State will have to be tempered. While putting the State of Uttarakhand (temporarily) back under President’s Rule, the Supreme Court has also accepted the Centre’s undertaking that it will not revoke the proclamation or swear in a new government till the next date of hearing.
We have not heard the last on this matter. The next question to be considered by the Supreme Court on April 27 will be decide whether to allow the floor test mandated by the High Court to go ahead on April 29. The Supreme Court has itself held in the past that a floor test is the best method to determine whether the government still enjoys the confidence of the legislative assembly.
Two factors may however complicate the issue in the Supreme Court - the disqualification of 9 Congress MLAs by the Speaker on grounds of defection and the judicial process itself. The issue of whether the disqualification is justified is pending before a single judge of the Uttarakhand High Court. While the Centre would, understandably, like to wait for the outcome of those proceedings, the State government would, equally understandably, want to proceed with the floor test without them. In the midst of this, there is also the possibility that the Supreme Court might want to refer the matter to a Constitution Bench of five judges for hearing given the issues at stake, which will inevitably delay the final conclusion of the case.
Delaying the decision too long on either of these two factors would be a travesty of justice - as happened in the case of Arunachal Pradesh earlier this year. There, the whole issue of the validity of President’s Rule imposed on Arunachal was allowed to become futile as the Central government revoked the Presidential proclamation and swore in Nabam Tuki to be the Chief Minister, even as the hearings were going on in the Supreme Court on the validity of imposing President’s Rule in the first place. While judgment has been reserved for two months in that case, it is hard to see what purpose it will serve even if the Supreme Court were to say that the President’s Rule was imposed unconstitutionally, now that a new government has been sworn in. Unless the Supreme Court goes to unprecedented lengths to unseat a State government, its passivity has ensured that the Centre was allowed to undermine it in this case.
The Uttarakhand High Court on the other hand, has been prompt and strict in its enforcement of the Bommai rule. Recognising the possibility that the Centre may just repeat the Arunachal strategy, it asked for an undertaking that the Centre won’t do so, and upon receiving none, wasted no time in delivering a strong judgment setting aside President’s Rule.
Constitutions and laws don’t enforce themselves. They need strong institutions which are aware of their roles and possess the will to carry them out in the face of pressure. Governments in India have in the past, and will in the future, attempt to push the boundaries of what is constitutionally acceptable. It is up to the judiciary to ensure that governments stay within these limits.
The Uttarakhand High Court, in this case, has done a fine job. It is for the Supreme Court now, over the next month till the Presidential proclamation lapses in May, to ensure that the cause of constitutionalism is not squandered through passivity or pusillanimity.
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