Let the Citizens be the Judge:Index President’s Rule in India

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The imposition of President’s Rule under Article 356 of the Constitution in Arunachal Pradesh on 26 January 2016 and Uttarakhand on 26 March 2016 have aroused a lot of political discontent and some outrage in the public domain.

The apex court of the country has played a unique but very positive role in the latter in navigating back to political order in Uttarakhand. In this case the Supreme Court followed the line laid down in the judgment in the post-Babri Masjid famous Bommai Case.

But when placed in relation to the rather scandalous history of the ‘use’ of Article 356 for over half a centurypost 1950, recent incidents seem insignificant.

In the first fifty years of the life of the republic, the Article has been invoked 90 times, and in most cases it has been so done on perceived partisan grounds by the central government in Delhi.

The official Sarkaria Commission (1983-87) recorded that this Article was mostly misused. The Commission saw the exercise as ‘unprincipled invasion’ of the States’ powers. While it was used ten times up to 1966, during 1967-86, it was used seventy times.

The Supreme Court verdict in the famous S R Bommai versus the Union of India case (1994) circumscribed the use of the Article and hedged it with many tough conditions. In the pre-Bommai (1994) era, the President’s Rule in the States was largely seen as a political game that defied sound logic. All political parties at the Centre played the game without any recognition of the electorate who had voted a government into power.

In the prelude to the dismissal of the first ever democratically communist government (in the world) in Kerala (1957) a reporter asked then Prime Minister Jawaharlal Nehru if he was going to fight the communists or throw them out. Nehru said: ‘Throw them out? What do you mean? They have also been elected’.

Indira Gandhi, then Congress President and present reportedly said: ‘Papu, what are you telling them? You are talking as the prime minister. As the Congress President, I intend to fight them and throw them out’. (Khilnani)

The said government was dismissed in 1959 and that is part of the sad history of India’s democracy. It is on record that Indira Gandhi as prime minister in her post-1980 reincarnation even dismissed duly elected Congress state governments with stable majority due her dislike of the Chief Ministers. The Janata Party government (1977-80) dismissed Congress led state governments even though they had stable majority in the Assembly. There are very few precedents when the President acted independently in defence of the Constitution. In the above, both federalism and democracy were severely impaired. The citizens’ democratic verdict was trampled upon.

The founding fathers of the Indian Constitution did not spend much time in the Constituent Assembly on the draft provision of President’s Rule. When the issue was introduced in the CA (late in 1949) national security of the country was a prime concern. In the post-Partition trauma and the state action in Hyderabad (Telangana peasant rebellion) many influential members thought that such a provision was necessary to save the state governments/people of the state from external aggression and internal disturbances.

But Ambedkar’s addition was more democratic in intention. He said that by this provision the President should warn the state governments before acting, which means ‘allowing the people of the province to settle matters for themselves’.

Article 356 empowers the President to issue proclamation of President’s Rule in a State so convinced on the basis of a report from the state Governor that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. Such proclamation will have to be approved by both houses of Parliament within two months, and if approved, it will not last beyond six months since the date of its proclamation.

The apex court in the S R Bommai vs. the Union of India case (SC 215/AIR 1994 Sc 1918) laid down the following additional provisions regarding the proclamation: (a) it is subject to judicial review; (b) the Government of India has to prove that relevant materials exist to justify proclamation; (c) the court will not go into the correctness of the materials; and (d) a State government is liable to action under Article 356 if it pursues anti-Secular politics. Since the famous Supreme Court judgment in the case Kesavananda vs the State of Kerala (1973) federalism and democracy have been considered among others as part of the ‘basic structure of the Constitution’ which means any executive action on those matters warrants judicial intervention and if the Article 356 has been invoked in violation of them such action is liable to be struck down.

On the face of it the above seems fair enough; when a state is elected and the government commands majority in the Assembly, dismissal of such government plainly goes against both democracy and federalism. But what if the government of the day with a good majority tramples upon citizens’ rights and liberties? If people take law into their hands knowing that the party in power will protect them, what use does such a democracy have for the people? If there is large corruption in a state under a particular party led government and the members of the government themselves are accused but often go scot free, can we call it a government run in accordance with the provisions of the Constitution?

The Governor is empowered to send a report to the President (or the government of the day at the Centre) recommending President’s Rule. That is an episodic action. Does the day to day decline of governance figure in the regular reports of the Governor, if any, to the President? Ambedkar rightly spoke of ‘allowing the people of the province to settle matters for themselves’. How can people within this constitutional structure do so? Can people cross-check if the facts stated in the Governor’s report are true? Even if they do so does it carry any value at all? The answer is evidently ‘no’. Such constitutional provisions are part of the discourse of the post-Hobbesian Leviathan known as the state. They empower the state rather than the citizens. Today, the above constitutional stipulations are somewhat anachronistic and certainly out of date.

Any proclamation of President’s Rule dismissing a duly elected State government is evidently an affront on the verdict of the citizens. But citizens also do pay a heavy price though living under a (party-based) majoritarian rule of the State government which may be seriously short of democracy, and oppressive.

Globally, indexing is a scientific device used to measure many aspects of human life today. We are all aware of and used to our air quality being indexed; mortality is indexed; human development including inequality adjusted human development is indexed. Good governance is also indexed. Indexed is also modern slavery, extent of child labour practice, literacy, malnutrition, public corruption and so on. Such indexing practices have served to improve the quality of human life by cautioning the governments of the day of their daily failures.

The basis of proclaiming President’s rule can also be indexed for the sake of citizen-centric governance and ensuring real political stability. What can we bring under such indexing? Apart from the above, the most important area of course is law and order, and in this respect the Government of India’s Home Ministry’s crime records (‘Crime in India’) are useful data to be indexed. This will help indexing the rate of crime against women, particularly rape; murder and political violence; rate of arson; damage to public property etc. Such indexing is to be made periodically and made available to the people.

There should also be an indexing of suppression of dissent (including the freedom of expression). This is very important for assessing the extent of democracy available in a state and or a regime collapsing into authoritarianism. A state government’s financial indiscipline by misusing public money on items neither approved by the public nor mandated is an area which requires indexing because apart from badly running (and ruining) the state economy, it forces the citizens to bear the increasing burden of public debt. Such public debt binds many generations.

The content of the Governor’s report to the President is not known to the people. This cannot be sacrosanct in a democracy which demands transparency. This should be brought under public scrutiny not simply in the sense of reading the report but for the criteria used.

The heavy misuse of Article 356 has, as its opposite and equal reaction, led to heavily circumscribing of the use of this article post-1994. The Governor can continually caution the state government of the day on the basis of such indices. Citizens come to know of the daily decline in governance. The ruling parties have ways of pursuing anti-secular activities by pampering certain religious communities whose support in elections is strategically very significant. Understanding anti-secular politics should not wait for the demolition of a religious shrine. Indexing such data can be effective in exposing the extent of anti-secular politics.

An agreed upon set of indices, as indicated above, when so considered by the experts, policy-makers and other stakeholders, can act as the yellow card for the recalcitrant state government. A red card will be the final whistle. Let the Governor, armed with a set of indexes, act as a referee rather as an adjunct to a post-colonial state apparatus. That would make the office of the Governor genuinely citizen-centric, and the President’s Rule worthy in a democracy.

Source: Google (press release)

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