WHETHER THE SUPREME COURT GUIDELINES IN S.R. BOMMAI VS UNION OF INDIA (1994) 3 SCCC 1 ON ARTICLE 356 STILL HOLDS GOOD OR REQUIRES A REVISIT?

 

Authored By – Dr. Rakesh Kumar Chopra[1]

The power conferred under article 356 is not an absolute power but conditional not to impact the basic feature of the constitution; as the framers of the constitution ensured that the word “Emergency” is something which should cover  realistic and not probable instances to invoke 356 as it will impact the basic fabric of the constitution but what happens when the relationship of the Centre and State are not in a coordinated manner on the subject matter of law and order wherein the state government do not comply with any directions of the Central Government, nor even provide the support and assistance to the Central team to visit the areas where; there are evidence to shows failure in the maintenance of law and order and the State(s) take the plea that maintenance of law and order is a state subject and therefore sending any report to the central government is not binding on the state; then in such cases; a question arises, how to remove such impasse?. To be honest, there is no clear yardstick ; as in a Federal State it is the duty of Union  and State to work in a harmonious way, not based on ill will or personnel vendetta or malafide; so that the spirit of the Constitution remain intact.

If we look at Article 356, it can only be imposed when the president is satisfied before exercising his discretion, which is formed on the basis of the report of the Governor or on the basis of some other information received by him, or both; which means that there must exist some material facts as a pre-condition to the formation of satisfaction. Article 356 uses the word “may”; which indicates not only a discretion but an obligation to consider the advice and necessity of taking suitable action. If the President is satisfied that the government of the State cannot function run along constitutional lines, he can declare constitutional emergency in the state and assume to himself all or any of the functions of the Government of the state and all powers of the State other than those exercised by the legislature and High Court of the State. The President can also declare that the powers of the state legislature shall be exercised under the authority of the Parliament and make such incidental and consequential provisions as appear to him to be necessary or desirable for giving effect to the objects of the Proclamation. So far as dissolution of the Legislative Assembly is concerned, it should be a last resort, for achieving the purpose of the proclamation. The exercise of the power is made subject to approval of the both Houses of Parliament.

Article 356 Clause (3) is a safeguard against abuse of power by the President, in case where both the Houses of Parliament disapprove or do not approve the proclamation, the proclamation lapses at the end of the two-month time line. In such a case, government which was dismissed will revive automatically. The Legislative Assembly, which may have been kept in suspended animation gets re-activated. Since the proclamation lapses – and is not retrospectively invalidated – the acts done, orders made and laws passed during the period of two months do not become illegal or void; however, the same is subject to review, repeal or modification. It is essential to remember that there is an obligation on States and the Union that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose as mentioned in Article 256. Even, the administrative jurisdiction of the union and the state Governments extends to the subjects in the Union list and State list respectively, which clearly establishes the superiority of the Union Government in the administrative sphere as well.  In addition the Constitution contains a number of provisions which accord a position of superiority to the Union Government. Therefore, any law made by the State government, which intends to negate the law made by the Parliament shall be declared void.

In view of foregoing, the State Governments cannot ignore the directions of the Union Government, otherwise the President can take the plea that the Government of the state cannot be carried on the accordance with the provisions of the Constitution and impose President’s rule on the state. In such an eventuality the President shall assume to himself all or any of the functions of the State Government.

The President of India can also entrust to the officers of the State certain functions of the Union Government. However, before doing so the President has to take the consent of the state Government. But what happens when the State don’t consent and stalemate remains. Creation of All India Services was aimed to have a balancing act in a federal setup; i.e. the Indian Administrative Services, and the Indian Police Services etc. which accords a predominant position to the Union Government. The members of these services are recruited and appointment held by the Union Public Service Commission; but posted in the State, based on the cadre allotted, however they can be posted under deputation to a Central Post. The situation becomes complex, where on specific matters, they are bound to respond to the Central Government but are not permitted by the State; even at  a level of Director General of Police or Chief Secretary of the State; as they are  not permitted to respond or submit report to the Union Government by the Chief Minister.

The State Governor can entrust conditionally or unconditionally certain functions with respect to the executive powers of the state to the officers of the Union with the consent of the Union Government. (Article 258A). It may be observed that the original Constitution did not contain this provision. This provision was added through 7th amendment in 1956. In 1976 a new dimension was given to the Centre-State Relations in the administrative sphere by 42nd amendment, which empowered the Central Government to deploy armed forces for dealing with any grave situation of law and order in the States. The contingents so deployed were to act in accordance with the instructions of the Central Government. This change restricted to a large extent the autonomy of the states and was objected by the states. Ultimately this provision was nullified by the 44th Amendment. It is thus evident that the administration of the states cannot act in complete isolation and have to work under the directions and in cooperation with Union in a federal setup.

In S.R. Bhommai’s, the SC laid down certain guidelines so as to prevent the misuse of Article 356; mainly the proclamation is subject to judicial review and it should not be invoked based on political consideration. Moreover, the imposition of President Rule and dissolution of state assembly should not be done together and the state assembly can be dissolved only after approval by the Parliament. The High Court or Supreme Court can compel the Union government to disclose the reasons based on which the President rule was imposed. The Power of the President is a Constitutional Power but not an absolute power and the existence of material is a pre-condition to form satisfaction to impose the President rule.  However, the Court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President for issuance of the proclamation based on the relevant material and in the absence of relevant  material, the same cab be challenged in the  court of law .   Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery. Article 356 should be used sparingly by the Centre.

In cases, where the State don’t respond to the High Court, the Court can pass Contempt proceedings State but in light of SR Bohammis Judgment, the Central Governments have been cautious enough not to impose the President rule, which means , what is the yard stick of failure of Constitutional Machinery has to be seen with a microscopic eye.

Coming to the present situation, wherein the State decides not to improvise the law and order condition in the state and nor work as per the federal norms of the constitution, it is the high time the Parliament, may discuss this matter and a regulatory mechanism be formulated to ensure the accountability of Union and State to act in a time bound manner on the topic of law and order, such as large scale killing; targeting one community against the other due to political vendetta seems to be abuse of power. No doubt in such cases, the Courts do have jurisdiction to entertain; as the right to life and liberty as a public interest litigation.

Author therefore, recommends that in case of failure of constitutional machinery and to consider under the ambit of the words “or otherwise” ; there should be a procedure adopted by the parliament to justify the same by deploying a Central Team  with the  leader of opposition as a Chairman along with two other members from different political parties with experts at the level of  Principle Secretary and Director General of Police (working/retired) ; who will investigate the incident and report to the Speaker of the house , which is then laid on the table of the house for deliberation and once passed should be complied as a mandatory procedural  requirement to deal such situation. It is also the duty of State to cooperate with the Central team and provide necessary assistance in examining and investigating incidents of grave nature and report should be submitted within 3 to 5 days. Based on the report, action, if any, suggested under Article 356 can be proceeded. Moreover,   Art 74 which mentions about the President to act on the aid and advice of the council of ministers; must take into cognizance the recommendations of the Central team as well as NHRC, NWC, or any other Commission or Court on the subject matter; however the report by a political party shall have no bearing to be considered as “or otherwise” mentioned under Article 356 of the Constitution. The Author suggests that the inaction of States during pandemic or law and order situation due to any other circumstances should provide a rider on a State action to be controlled by the Union Government. Another alternative can be Presidential reference under Art 143 of the Constitution mainly on timelines, if no consensus is made as per first suggestion. No doubt the broad principles are clearly spelt out in S.R. Bomai’s case and it is up to the Central Government to take step further to avoid such mishap in future.

 

REFERENCES

[1] About the Author – Prof (Dr.) R.K. Chopra (Postgraduate in Electronics, Management, and Law) and doctorate in technology and law on the topic “Telecommunication Revolution and its Legal Implication under Indian Context” having  experience of more than three decade both on the theoretical as well as practical aspects of the law, currently working as a Professor in the University of Petroleum and Energy Studies Dehradun, India. His area of specialsation are Constitutional Law, Corporate Law, IPR and  Dispute. He is an international arbitrator on the panel of SIAC Singapore and member of Construction Industry Development Board, India . He worked on  project  on Liability of Nuclear damage, a New Regime under Internatioanl Law, under Indian Soceity of International law in 1992. He has presented papers on Environmental Health & Human Health(1993), Law Governing Contracts in International Contract(1997), Consultancy Contracts(1997), Women Enterprunership(2018).  .

*  The Suggestions made by Author are his personnel views

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