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Should this gubernatorial post be abolished considering how Article 356 was misused in Arunachal and Uttarakhandc, so much so that the Supreme Court had to intervene to restore these state governments?

By Kalyani Shankar

The use and misuse of Article 356 of the constitution has come into focus once again with the July 13 Supreme Court judgment on Arunachal Pradesh where it restored the Congress government.

The Harish Rawat government in Uttarakhand was dismissed on March 27, but he won the floor test in May
The Harish Rawat government in Uttarakhand was dismissed on March 27, but he won the floor test in May

On August 4, 1949, Dr BR Ambedkar, while reassuring the Constituent Assembly on the Union government’s power to impose President’s rule in the provinces, noted: “I hope the…

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Should this gubernatorial post be abolished considering how Article 356 was misused in Arunachal and Uttarakhandc, so much so that the Supreme Court had to intervene to restore these state governments?

By Kalyani Shankar

The use and misuse of Article 356 of the constitution has come into focus once again with the July 13 Supreme Court judgment on Arunachal Pradesh where it restored the Congress government.

The Harish Rawat government in Uttarakhand was dismissed on March 27, but he won the floor test in May
The Harish Rawat government in Uttarakhand was dismissed on March 27, but he won the floor test in May

On August 4, 1949, Dr BR Ambedkar, while reassuring the Constituent Assembly on the Union government’s power to impose President’s rule in the provinces, noted: “I hope the first thing he (the President) will do would be to issue a mere warning to a province that has erred, that things were not happening, in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article. I do not think we could then say that these articles were imported in vain or that the President had acted wantonly.”

The tussle in the Constituent Assembly was between those who saw Article 356 giving overreaching powers to the center and the president and those who saw that the power enabled them to merely give a helping hand to tide over the political and constitutional crisis. Ultimately, the latter prevailed but over the years, the former proved to be right.

CENTER’S POWER

However, former Supreme Court judge Santosh Hegde points out in The Wire that despite Ambedkar’s remonstrations, it became clear that it was not a true federation of independent states that had voluntarily acceded into a union. “The Central government’s power to override the States, far from being a dead letter, became a heavy hand, casting a long shadow on Centre-State relations,” he wrote.

This is borne by the fact that in the past 70 years, there have been 125 instances of imposition of President’s Rule. Manipur has been under President’s Rule on 10 occasions, while Uttar Pradesh and Punjab have seen it nine times. Prime Minister Indira Gandhi made use of it at least 50 times during her two stints to get rid of the opposition-ruled governments. Morarji Desai got the Congress governments dismissed after the Emergency. Almost all successive governments have used or misused the powers, affecting regional satraps.

It was in Arunachal Pradesh that the misuse of Article 356 played out in recent months. What happened in this state is important both politically and constitutionally. The apex court’s landmark judgment on July 13 may make governors, the Union cabinet and political parties think twice before dismissing an elected government.

Following the landmark SC order on Arunachal, Congress leader Pema Khandu is sworn in as the state’s chief minister in Itanagar on July 17
Following the landmark SC order on Arunachal, Congress leader Pema Khandu is sworn in as the state’s chief minister in Itanagar on July 17

The judgment by a five-judge constitutional bench headed by Justice JS Khehar, which ordered a status quo ante restoring the Nabam Tuki-led Congress government as on December 15, 2015, is clear about the powers of the governor, the Union government and the Speaker. In a major embarrassment to the Narendra Modi government, and even the President of India, the Supreme Court declared the decision to dismiss the Tuki government as illegal. The Bench told governors to remain aloof from the heat and dust of politics and that they were not entitled to convene, advance or postpone assembly sessions without the “aid and advice” of the council of ministers headed by the chief minister as long as it enjoyed a majority.

The Arunachal judgment is the second in quick succession by the apex court against misusing the provisions of Article 356. Only a few months back, the Court restored the Harish Rawat government in Uttarakhand.  It was dismissed by a presidential proclamation on March 27, 2016, and Rawat won a floor test on May 10. Both were Congress-ruled states and the root cause in both cases remained at the door of the Congress high command which refused to listen to dissidents or give them an audience.

In Arunachal, there was a rebellion against the Congress chief minister Nabam Tuki. The BJP, which wants a “Congress Mukt” North-east, stepped in to lure the rebels. The Tuki government was dismissed on January 26, 2016, after 21 of the 47 Congress MLAs rebelled against him. The government, led by dissident Congress leader Kalikho Pul, took over on February 20, with the support of the BJP from outside.

CONGRESS ACTS

The Congress tackled the situation with alacrity. It went to the Supreme Court, challenging the removal of the Tuki government and ultimately won the case. Next, it took the BJP by surprise by changing the horse mid-way—yielding to the Congress rebels and replacing Tuki with Pema Khandu.

The assembly now has an effective strength of 58, where the BJP has 11 MLAs and independents, two. With Speaker Nabam Rebia and the return of the dissidents, the Congress strength has gone up to 45. The result is that the state now has the youngest chief minister, Pema Khandu, 37, son of former chief minister Dorjee Khandu and a nominee of Tuki. For the Congress, all’s well that ends well.

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After the apex court judgment, Congress vice-president Rahul Gandhi tweeted: “Thank you Supreme Court for explaining to the Prime Minister what democracy is”, forgetting that at the root of the problem was the Congress high command. The Congress took note of the rebellion only after the dissidents joined hands with the BJP and brought down governments.

The imbroglio in Arunachal Pradesh now and Uttarakhand earlier cannot be seen as a BJP-versus-Congress fight as it goes beyond (impinging upon the federal structure of India). Article 356 gives wide powers to the center over a state. The past seven decades have shown that political parties have often misused this power as the gubernatorial posts of governors have come to acquire the dubious distinction of being partisan offices for the center to make use of them. Opposition parties often call them agents of the center. Unfortunately, this is because those governors who get their positions due to political patronage feel beholden to their godfathers.

POLITICAL AFFILIATIONS

Even the Sarkaria Commission had noted: “The burden of the complaints against the behaviour of Governors, in general, is that they are unable to shed their political inclinations, predilections and prejudices while dealing with different political parties within the State. As a result, sometimes the decisions they take in their discretion appear as partisan and intended to promote the interests of the ruling party in the Union Government.”

Arunachal’s governor JP Rajkhowa is not the first nor the last to find himself in the eye of a storm. Before him there were other errant governors such as Romesh Bhandari, Ramlal and Buta Singh.

At the Inter-state Council Meeting, Nitish Kumar and Arvind Kejriwal teemed up to demand an amendment to Article 356
At the Inter-State Council Meeting, Nitish Kumar and Arvind Kejriwal teemed up to demand an amendment to Article 356

The apex court’s strictures were strong. “Governors have limited powers, which should be used in a fair manner, so that democracy survives,” it said, adding “the governor had no business to call an assembly session on whims. Such action amounts to interfering with the legislative functions”. Rajkhowa seems to have acted in a partisan manner.

The echo of the verdict is not limited to Arunachal alone. It can be heard elsewhere. The immediate impact was the demand from opposition chief ministers to abolish the post of governor.

Prime Minister Narendra Modi with cabinet ministers and chief ministers at the Meet
PM Narendra Modi with cabinet ministers and chief ministers at the Inter-State Council Meeting

The attack on Modi during the Inter-State Council Meeting (a forum for chief ministers) on July 16 was led by Bihar chief minister Nitish Kumar and supported by others like Delhi CM Arvind Kejriwal and Jharkhand CM Raghubar Das. They demanded curtailing of the governor’s powers by amending Article 356, consultation with the chief minister on the appointment of the governor and implementation of the Punchhi Commission report on center-state relations.

CAUTIOUS BJP

Secondly, the BJP will have to be cautious in its attempts to get rid of Congress governments in view of the recent two apex court verdicts. The Arunachal verdict came on a day when BJP chief Amit Shah was launching the BJP-led North-east Democratic Alliance in Guwahati for achieving a Congress Mukt North-east. The BJP should be careful before attempting another coup, this time in poll-bound Manipur where dissident Congress legislators are said to be in touch with the BJP to topple the Okram Ibobi Singh government.

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Meanwhile, Himachal Pradesh chief minister Virbhadra Singh has been accusing the BJP of trying to destabilize his government. These two Congress CMs may get a breather after the apex court judgments.  

The Arunachal echo could make the Congress-led opposition belligerent during the Monsoon Session of parliament. Most opposition parties have already blamed the BJP for the constitutional crisis in Arunachal and for hurting federal relations. The verdict could also have an echo in the forthcoming assembly polls in UP and Punjab where the stakes are high for the BJP and the Congress and for regional parties like the SP, the BSP, the Akali Dal and AAP.

Modi has been talking of cooperative federalism. The meeting of the Inter-State Council has taken place almost after a decade. Modi had suggested the center would rise above political schisms to give every state a level-playing field. But, the promise sounds hollow.

It is time all parties heed the courts who have cautioned against the misuse of Article 356. The framers of the constitution would never have dreamt of such misuse.

 

Lead picture: Arunachal Pradesh governor JP Rajkhowa; Photo credit: Lovely Professional University

Other photos: UNI

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