fline

India's National Magazine
From the publishers of THE HINDU

Vol. 15 :: No. 14 :: July 04 - July 17, 1998


COVER STORY

The demands pressed by some of the Bharatiya Janata Party's coalition partners for using Article 356 and related constitutional provisions against State governments run by opponents have introduced a great deal of uncertainty, chaos and volatility into national politics. The Vajpayee Government has thus far resisted the pressures, presumably because it is convinced that undemocratic dismissal will backfire. Article 356 has been used on more than a hundred occasions, but the Supreme Court majority judgment of March 1994 in the Bommai case has brought about a quite profound change in the rules of the game.

To offer an in-depth analysis of the post-Bommai situation relating to the use of Article 356, Frontline interviewed five constitutional experts and four political leaders. The experts comprised three distinguished retired Supreme Court Judges, two of whom wrote key judgments that became part of the majority opinion in the Bommai case, one of India's top lawyers, and a constitutional scholar and writer.

'Bommai verdict has checked misuse of Article 356'

Justice B.P. Jeevan Reddy, former judge of the Supreme Court, had a key role in the March 11, 1994 judgment in the Bommai case. He was part of the apex court's majority opinion and wrote an eloquent judgment, along with Justice S.C. Agrawal, dealing with both federalism and secularism that is widely appreciated. He was interviewed in Hyderabad by R.J. Rajendra Prasad:

* What in your assessment is the essential difference between the situation pre-Bommai and post-Bommai?

What Bommai did was to lay down certain guidelines and certain standards in exercising power under Article 356. In fact, it is the case where we elucidated the meaning of the Article, consistent with the spirit of the Constitution and the background in which the Article was enacted. It was brought to the notice of the Supreme Court, and it was an undeniable fact, that the Article was used indiscriminately, or misused as one may call it, on a number of occasions, before the judgment in the Bommai case. Even at that time, it was said that on more than 90 cases, the power was exercised; and in most of the cases, it appeared to be of doubtful constitutional validity.

That power was exercised to dismiss the State Governments controlled by a political party opposed to the ruling party at the Centre. The Supreme Court wanted to introduce a certain clarity to regulate the power, by defining the power, by laying down standards according to which the power is to be exercised.

Since the judgment of the Supreme Court becomes the law of the land, it is obvious that the Central Government is bound by the judgment. It is therefore clear that after the Bommai case, the governments have been more careful, more on guard, more wary of exercising this power, lest their exercise should be set aside by the Courts.

As we all know, in the case of the dismissal of the Uttar Pradesh Government, the proclamation by the President was set aside by the Allahabad High Court following the Bommai judgment. But for the Bommai judgment, it is obvious the High Court could not have set aside the order of the President. That is the difference between pre-Bommai and post-Bommai.

*Do you think Article 356 should be abolished?

I don't think Article 356 should be simply abolished. Maybe it can be amended to make it more difficult for the President, or the Union Council of Ministers, to dismiss State Governments. But abolishing the Article itself is not advisable. You cannot say what situation, which cannot be conceived today, may arise in the future, in which the Central Government will have to step in in the larger interests of the nation. But we must develop a constitutional culture in which any power given by the Constitution to any Authority should be used only for the purpose intended, and not to achieve some other extraneous purpose.

*Can you explain what amendment would be in order?

By the Constitution 44th Amendment, this Article has been tightened a little. The amendment can be on the lines of the judgment in the Bommai case, in which the President, soon after issuing the Proclamation dismissing a State Government, was required to place it before Parliament for approval.

*Looking at it historically, under what circumstances would the use of Article 356 be just, if at all?

It is not possible to catalogue the grounds under which the power may be exercised. The standard is that the situation exists in which the State Government cannot be carried on in accordance with the provisions of the Constitution. The particular situation cannot be identified.

*In the 90-plus instances where the power under Article 356 was exercised till now, were there any instances where the power was exercised in a just manner?

We did not go into a review of the earlier cases, but generally, in most cases, it appears that the power was exercised arbitrarily.

*How can Bommai be better enforced in the rough and tumble of Indian politics?

The Governor has no power to dismiss a State Government. It is only the power of the President, which means the Union Council of Ministers. So far as the exercise of the power by the Union Council of Ministers is concerned, the Constitution is itself meant to regulate and to determine, to standardise, the political conduct. Politicians should learn to conduct themselves according to the spirit of the Constitution. Otherwise there is no purpose for the Constitution. If you want to act, you must act in accordance with the Constitution.

Take the example of the United Kingdom. It is a very developed country but the Prime Minister, the Leader of the Opposition, they all function in accordance with the constitutional provisions. That is why we speak of the need to develop a political culture of functioning in accordance with the Constitution. We should develop such a culture.

P.V. SIVAKUMAR

*Would use of Article 356 be mala fide if there is an agreement to dismiss an elected Government as part of a pre-electoral understanding?

It is a political question. I do not want to answer it.

*What do you think can be done about the problem of a Governor being a political agent of the Centre?

Governors do not realise the importance, significance and the functions of the office they hold. They think they are merely the agents of the Centre. No. The State Government is his Government. When the Governor speaks in the Assembly, he talks of "his" Government. At the same time, he has taken the oath to uphold the Constitution. When he discovers that the State Government is not functioning according to the Constitution, it is his duty to report the matter to the Central Government.

As we said in the judgment on Bommai, the Governor is like a person wearing two hats. With one hat, he is the head of the State Government and with the other, he is a representative of the President. He is not a mere agent of the President.

That is why we made some strong comments against the Governor of Karnataka in the Bommai case. We said that the President's proclamation should be placed in Parliament within two months and approved. These are all the checks, placed in the interests of the Constitution, in the interests of the nation, and for the public good.


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