Democracy Under Duress? Examining President's Rule in India

 

Courtesy - CivilsDaily

Introduction: The President's Rule, also known as 'State Emergency' or 'Constitutional Emergency' is an important provision under Article 356 of the Indian Constitution which allows the Central government to assume direct control over a state's administration when its constitutional machinery fails.

Constitutional Provisions:

• Article 356: Deals with the imposition of President's Rule in a state due to the failure of constitutional machinery.
• Article 365: States that if a state government fails to comply with or give effect to any directions given by the Union, it shall be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions with the Constitution.
• Article 355: Imposes a duty on the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
• Article 357: Deals with the exercise of legislative powers under a proclamation issued under Article 356.

Parliamentary Approval & Duration:

• Approval: A proclamation of President's Rule must be approved by both Houses of Parliament within two months from the date of its issue.

1. In case of dissolution of the Lok Sabha during this two month period without approving the proclamation, the proclamation survives until 30 days from the first sitting of the newly constituted Lok Sabha, provided that the Rajya Sabha has approved it in the meantime.

• Duration: Once approved by both Houses, the President's Rule lasts for six months. It can be extended for a maximum period of three years with parliamentary approval every six months.
• 44th Amendment Act, 1978: A resolution for the continuance of President's Rule beyond one year can be passed by Parliament if two conditions are met:

1. A proclamation of National Emergency (Article 352) is in operation in the whole of India, or in the whole or any part of the state concerned.
2. The Election Commission (ECI) certifies that general elections to the legislative assembly of the state cannot be held on account of difficulties.

• Revocation: A proclamation of President's Rule may be revoked by the President at any time by a subsequent proclamation which does not require parliamentary approval.

Consequences of President's Rule: When President's Rule is imposed, the President can take the following actions.

• Executive Actions: 

1. Assume to himself/herself all or any of the functions of the State government and powers vested in or exercisable by the Governor or any body or authority in the state.
2. Declare that the powers of the State legislature shall be exercisable by or under the authority of Parliament.
3. Dismiss the state Council of Ministers headed by the Chief Minister.

• Legislative Actions:

1. The State Legislative Assembly may be either suspended or dissolved.
2. Parliament makes laws for the state.
3. The President can promulgate ordinances for the state when Parliament is not in session.

• No Effect on High Court: The President cannot assume the powers of the High Court of the state or suspend any constitutional provision relating to it.
• No Effect on Fundamental Rights: The imposition of President's Rule does not affect the Fundamental Rights of the citizens.

Criticism of President's Rule: 

• Allows the Central government to virtually take over the administration over a state, undermining federalism.
• Weakens the democratically elected state governments, diminishing their autonomy.
• Frequent and arbitrary use of Article 356 goes against the spirit of cooperative federalism.
• Widely criticized for being used as a tool by the ruling party at the Centre to dismiss state government run by opposition parties.
• Allegation of the Governor's partisan role in recommending President's Rule.
• The Constitution does not clearly define 'failure of constitutional machinery', leaving ambiguity and a wide scope for misuse.
• Erosion of public confidence due to dismissal of democratically elected state governments by the centre.

Landmark Amendments & Cases:

• 38th Amendment Act, 1978: Made the President's satisfaction in invoking Article 356 final, conclusive and beyond judicial review.
• 44th Amendment Act, 1978: Reversed the 38th Amedment, making the President's satisfaction in invoking Article 356 subject to judicial review.
• S.R. Bommai v. Union of India (1994): Significantly curtailed the misuse of Article 356.

1. The power of the President to issue a proclamation under Article 356 is not absolute and is subject to judicial review.
2. The President's satisfaction must be based on objective and relevant material.
3. The majority of the government should be tested on the floor of the Assembly.
4. States are not mere appendages of the Centre, reinforcing the federal character of the Constitution.
5. The dismissed state government can be restored if the President's Rule was imposed on malafide grounds.

• Rameshwar Prasad Case (2006): The Supreme Court held that the dissolution of the Bihar Legislative Assembly under President's Rule was unconstitutional, reiterating the importance of objective criteria and judicial review.  

Recommendations of Commissions:

• Sarkaria Commission (1988):

1. President's Rule should be a measure of last resort after exhausting all other alternatives.
2. The possibility of forming an alternative government should be explored before imposing President's Rule.
3. The Governor's report should contain precise facts and reasons.

• Punchhi Commission (2007):

1. Suggested a localized emergency i.e imposing President's Rule in specific areas or districts rather than the entire state.
2. Recommended the need to the clarify the term 'failure of constitutional machinery'.
3. Recommended mandatory floor test before imposing President's Rule.

• National Commission to Review the Working of the Constitution (NCRWC, 2002):

1. Retiterated the need for Article 356 to be used sparingly, as a measure of last resort.
2. Stressed on the objectivity of the Governor's report.

Way Forward:

• Strict adherence to the principles of S.R. Bommai judgment (1994).
• A set of guidelines on what constitutes a 'failure of constitutional machinery' could be developed.
• Strengthening parliamentary scrutiny through parliamentary committees and meaningful debates.
• Build a political consensus among parites on the judicious use of Article 356.
• Cultivate a culture of respect for the federal structure and state autonomy.

Conclusion: The solution lies in striking a delicate balance between the Union's responsibility to maintain constitutional order and the preservation of state autonomy. The future of Indian federalism hinges on a collective commitment to constitutional propriety and cooperative federalism.