Letter from the Editor: Who is killing Federalism?

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I return, in this space, to the wisdom of the Sarkaria Commission. Not enough can be said about the sagacity, political perspicacity, scholarship and uncanny far-sightedness of the luminaries—Ranjit Singh Sarkaria, B Siva-raman, Dr SR Sen. These notables undertook—between 1983 and 1988—a remarkable review of center-state relations under the Indian constitution and authored a 1,600-page magnum opus which stands out as a beacon to the Indian system of governance, guiding it more forcefully towards the cardinal principle that glues Indians together as citizens—the practice and pursuit of enlightened federalism.

In the aftermath of the baffling politico-legal-constitutional melodrama being played out in Uttarakhand even before the embers of the Arunachal Pradesh conflagration have died out, it is significant that the Shiv Sena, a regional avatar of the Hindu Right more in tune with the BJP’s Hindutva nationalism than the Congress’ inclusive secularism, should be singing the same tune as the Grand Old Party. In unusually harsh terms, the Sena has officially condemned the BJP’s imposition of Governor’s Rule in Uttarakhand under Article 356 of the constitution as a “strangulation” of democracy: “In a democracy, the voice of the opposition is of paramount importance and should not be strangled since a single-party rule would be worse than an Emergency or dictatorship. The country will be destroyed if the opposition is targeted and snuffed out.”

The author of this sentence could well have been a member of India’s Constituent Assembly!

The detailed story of the unfolding political crisis in which the courts are now involved appears elsewhere in this issue. What is deeply disturbing is the habitual and flagrant disregard for legal, constitutional and administrative pronouncements by politicians and political parties. The conditions under which Article 356 (to be applied in the “rarest of rare cases”) can be used to dismiss an elected assembly and impose Governor’s Rule are clearer than daylight. There are no loopholes. The constitution and the landmark Supreme Court decisions (Bommai in 1994, and Rajasthan versus Union of India in 1977) stand together as an impregnable legal fortress against the misuse of this provision by ruling parties at the center to establish their primacy over a state government through horse-trading of legislators and political subterfuge with the connivance of state governors who act as agents of the ruling party rather than as representatives of the Union of India.

Yet, this Article has been invoked 126 times since Independence to dismiss state governments. It is clear that the Article may be invoked in emergency situations where there’s a total breakdown of law and order, as a constitutional necessity. But it cannot be used as a political weapon. And it certainly cannot be used in violation of the Gold Standard in case of an alleged loss of a majority in a legislature—the necessity of a floor test.
Alas, the party crying foul! the loudest—Congress—has historically been the worst violator starting with the Nehru government which dismissed the first democratically elected state Communist regime of EMS Namboodiripad in Kerala in 1959. As blogger Nived Narayan summed it up on Quora: “It set a precedent. And that was the real problem. The Congress government dismissed state governments at will whenever they were formed by parties which it had problems with. Such belligerent show of strength by the Central government, and that too from Nehru himself set a bad precedent which later set an example for the likes of Indira and Janata government of Morarji to trample upon the federal structure.”

“Trample upon the federal structure” is the operative phrase. It is playing with fire. It is tantamount to unravelling the delicately and sensitively woven warp and woof of India which came into being as a nation of citizens in 1947-1948 after more than 562 independent principalities joined the Indian Union (formerly British India).

It was to the preservation of this striking new national amalgam of the most culturally, geographically and linguistically diverse people of the world through the concept of Indian citizenship that the Sarkaria Commission addressed itself. Its mandate —re-examining and suggesting reforms in the whole gamut of center-state relations—was huge and daunting. Further, it laid the intellectual and academic framework for a monumental project later undertaken by the first NDA government in 2000. Under a bold initiative from Prime Minister Atal Bihari Vajpayee, the government established the National Commission to Review the Working of the Constitution (NCRWC), also known as Justice Venkatachaliah Commission to recommend possible amendments to the constitution of India. The mammoth task force submitted its report in March 2002. What was the key feature in the constitution that enabled the very idea of Indian nationhood? Both commissions answered this question with an answer that was spot on! Federalism.

To strengthen federalism, even at the cost of more decentralization and greater regional autonomy, Sarkaria believed, was to strengthen India. But laws and emergency provisions were also needed to prevent the disintegration of the nation through violence and anarchy. One of them was Article 356.

The 1,600-page Sarkaria report with 247 recommendations spread over 19 chapters made the following observations: “Federalism is more a functional arrangement for cooperative action, than a static institutional concept. Article 258 (power of the Union to confer powers etc on states in certain cases) provides a tool by the liberal use of which cooperative federalism can be substantially realized in the working of the system. A more generous use of this tool should be made than has hitherto been done, for progressive decentralization of powers to the governments of the states…”

Article 356, it recommended, should be used “very sparingly, in extreme cases, as a measure of last resort, when all other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state”.
As part of a follow-up exercise, the NCRWC released a “consultation paper” for generating a public debate and eliciting public response. It was based partly on copious research done by Justice BP Jeevan Reddy, Member of the Commission. The questionnaire released by that Commission for future policy formulation is probably more valid than ever before given the current political crises in the country over center-state relationships and the use of Article 356.

Here’s the questionnaire:

1. Should the Constitution provide that until both Houses of Parliament approve the proclamation issued in clause (1) of Article 356, a state legislative assembly cannot be dissolved?

2. Do you agree that if necessary, the legislative assembly need only be kept under suspended animation?

3. Do you agree with the suggestion that before issuing a proclamation under clause (1) of Article 356, the president/the central government should specifically indicate to the state government the matters wherein the state government is not acting in accordance with the provisions of the Consti-tution and give it a reasonable opportunity of redressing the situation—only exception being a situation where following the above course would not be in the interest of security of State or defence of the country?

4. Do you agree with the suggestion that once a proclamation is issued, it should not be permissible to withdraw it and issue another proclamation to the same effect with a view to circumvent the requirement in clause (3) of Article 356?

5. Do you agree that, even if a proclamation is substituted by another proclamation, the period prescribed in clause (3) should be calculated from the date of the first proclamation?

6. Do you agree with the suggestion that a proclamation must contain (by way of annexure) the circumstances and the grounds upon which the President has reached the satisfaction that a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution?

7. Do you agree with the suggestion that, whether the ministry in a state has lost the confidence of the legislative assembly, it should be decided only on the floor of the assembly and nowhere else?

8. Do you agree that in a case where the confidence of the legislative assembly in the ministry in a state has been lost or not has not been tested on the floor of the House, it is advisable to the central government to take necessary steps to enable the legis-lative assembly to meet and freely transact its business?

9. Further, do you agree, that the governors should not be allowed to dismiss the ministry so long as it enjoys the confidence of the House?

10. Further, do you agree, that only where a chief minister of the ministry refuses to resign after his ministry is defeated on a motion of no-confidence, should the governor dismiss the state government?

11. Do you agree with the suggestion that safeguards corresponding, in principle, to clauses (7) and (8) of article 352 should be incorporated in article 356 to enable parliament to review continuance in force of a proclamation?

12. Do you agree with the suggestion that in clause (5) of article 356, the word ‘and’ occurring between sub-clauses (a) and (b) should be substituted by ‘or’?

13. Do you have any further suggestions to make on the issues discussed in this paper? If so please state them.
The questionnaire was preceded by several suggestions including:

“Whenever a proclamation under Article 356 has been issued and approved by the parliament it may become necessary to review the continuance in force of the proclamation and to restore the democratic processes earlier than the expiry of the stipulated period. For this, new clauses (6) & (7) to Article 356 may be added on the following lines:

“(6) Notwithstanding anything contained in the foregoing clauses, the president shall revoke a proclamation issued under clause (1) or a proclamation varying such proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such proclamation.

“(7) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a proclamation issued under clause (1) or a proclamation varying such proclamation:

“(a) to the Speaker, if the House is in session; or

“(b) to the president, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.”

“(172) Article 356 should be amended so to ensure that the State Legislative Assembly should not be dissolved either by the Governor or the President before the proclamation issued under article 356(1) has been laid before Parliament and it has had an opportunity to consider it.”

Relying heavily on the Sarkaria report, the NCRWC reiterated that only the spirit of “co-operative federalism” can preserve the balance between the Union and the states and promote the good of the people and not an attitude of dominance or superiority.

“Under our constitutional system, no single entity can claim superiority,” states the Sarkaria report. “Sovereignty doesn’t lie in any one institution or in any one wing of the government. The power of governance is distributed in several organs and institutions—a sine qua non for good governance. Even assuming that center has been given certain dominance over the states, that dominance should be used strictly for the purpose intended, nor the oblique purposes. An unusual and extraordinary power like the one contained in Article 356 cannot be employed for furthering the prospects of a political party or to destabilize a duly elected government and a duly constituted legislative assembly. The consequences of such improper use may not be evident immediately. But those do not go without any effect and their consequences become evident in the long run and may be irreversible.”

Both the commissions remind the government that Article 356 appears in that part of the constitution which relates to emergency provisions. Though the article itself does not employ the expression emergency or any of its variants, “the fact that it occurs in the chapter relating to emergency cannot be lost sight of. This is merely to emphasise the unusual character of the said provision and to remind ourselves of the hope expressed by Dr Ambedkar that ‘such articles (articles 355 and 356) will never be called into operation and that they would remain a dead letter’”.

Post Script: Both the Sarkaria and Venakatachaliah reports—brilliant documents promoting liberal governance and democratic values—are gathering dust. Far from being a “dead letter” as the father of our constitution had hoped it would become, Article 356 seems to live on endlessly.

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