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Uttarakhand Imbroglio: Federalism’s Darkest Hour

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Despite landmark verdicts limiting the use of Article 356, the imposition of President’s Rule in this hill state shows the immense scope for its abuse by a partisan center
By Venkatasubramanian


One of the basic features of the Indian constitution is federalism. Yet, every time the center uses Article 356 to impose President’s Rule in states governed by opposition parties, it makes one wonder how both the executive as well as the judiciary miss the essential inconsistency between this provision and the principle of federalism.

In the two recent instances of imposition of President’s Rule—Uttarakhand in March and Arunachal Pradesh in January—the reasons are the same: the majority of the ruling faction comes under doubt, following the rebellion of a few legislators aga-inst the chief minister. The resultant situation is interpreted as a failure of the constitutional machinery, meriting the imposition of President’s Rule.

Imagine a similar situation obtaining at the center, where there is no provision for imposing President’s Rule. At the center, floor-test is always recognized as a sensible way to test the majority character of the ruling faction in times of intra-party revolt or hung electoral verdicts. And when floor-tests fail to bring about durable governments, fresh elections are announced as a way out. The lack of a constitutional provision to impose President’s Rule at the center has never been a handicap in resolving such issues.

In states, however, the itch to impose President’s Rule by the center has always been irresistible only because Article 356 exists in the constitution, with its inherent potential for abuse.

The ongoing political crisis in Uttarakhand is a classic example of how a ruling party— which, when it was in the opposition, was critical of the misuse of Article 356—finds nothing wrong in misusing it in pursuit of its ulterior political motives.

SC JUDGMENTS

The Supreme Court in successive cases like SR Bommai and Rameshwar Prasad had held that the imposition of President’s Rule in the cases before it was unconstitutional on the ground that it was mala fide. Further, it had reserved to itself the power to restore status quo ante if fresh elections in the states placed under President’s Rule had not taken place before the delivery of the judgments.

It required the judiciary’s intervention to ex-pose such malafide exercise of power by the center in Uttarakhand too. First, a single judge of the Uttarakhand High Court, UC Dhyani, on March 29, directed the convening of the state assembly to take up on March 31 a vote of confidence on the government of ousted Congress chief minister Harish Rawat. It also declined Rawat’s plea to stay the President’s Rule imposed on March 27.

Justice Dhyani also allowed the nine Congress rebel MLAs—whose disqualification was in doubt—to vote in the confidence motion, but directed the speaker to keep the result of the vote in a sealed cover and submit it to the court.

Both the Congress and the center were dissatisfied with Justice Dhyani’s verdict, and appealed against it before the Division Bench of the High Court. The bench comprising Chief Justice KM Joseph and Justice VK Bist stayed Justice Dhyani’s judgment and the floor test to be held on March 31 and heard the parties at length. On April 21, the Division Bench gave its oral judgment quashing President’s Rule and reviving the Rawat government. Further, the bench directed this government to seek a vote of confidence from the assembly on April 29.

CENTER’S STAND

The center claimed that the imposition of President’s Rule was justified on two grounds. One, it alleged that the passage of the App-ropriation Bill in the state assembly on March 18 was dubious as it was declared passed on a voice vote, overruling pleas for division by members. The High Court did not accept this claim as there was no challenge on the passage of the Appropriation Bill in the assembly by anyone. The bench said: “If this is allowed, it can possibly result in undue interference in the affairs of the State Legislatures leading to unwarranted imposition of Presi-dent’s Rule. The federal framework, within which the country functions, could shrivel up and breakdown. This does not augur well for the Nation.”

Attorney General Mukul Rohatgi told the High Court bench that after the events of March 18 in the assembly when the Appropriation Bill, a money bill, was declared passed without a vote, the government had fallen.

Disagreeing with this view, the High Court bench reasoned that had it been so, the governor would not have thought it fit to grant time to Rawat to seek a vote of confidence on Mar-ch 28. The bench also referred to the position that the Bill had been passed by voice vote, and the decision has finality, and that the decision of the speaker about the proceedings cannot be questioned. The facts relating to the passage of the Bill on March 18, as claimed by the center, have been contested by Rawat.

STING OPERATION

The second ground relied by the center was that a sting video, released on March 26, showed Rawat indulging in horse-trading. The High Court, however, held that the sting was a solitary instance, which was yet to be verified. As Rawat was entrapped, entrapment is not a sting, it was pointed out.

On April 22, the Supreme Court bench, comprising Justice Dipak Misra and Justice Shiva Kirti Singh, stayed the High Court Division Bench’s judgment on a petition by the Union of India, with the contention that the judgment dictated in the open court had not yet been transcribed, and given to the parties concerned, to enable them to approach the appellate court. The stay on the High Court’s judgment resulted in the restoration of President’s Rule, and further delay in the holding of the floor test, to determine whether Rawat has a majority in the assembly.

On April 27, the same apex court bench extended the stay on the High Court’s judgment after hearing the parties at length and after framing seven issues for resolution. It is likely that the stay on the High Court’s judgment will last till the hearing concludes and judgment delivered. The Supreme Court clearly expects the center not to revoke President’s Rule in the state during the hearing of the case, so as to install a puppet government, with the support of the BJP, as it did in Arunachal Pradesh earlier.

Among the questions that the bench would answer is whether a delay in the floor test is ground for proclamation of President’s Rule in a state. Another key issue is whether the disqualification of MLAs by the speaker is a relevant issue for imposing it. Whether the president can take note of the proceedings in the assembly for the purpose of invoking Article 356 is among the issues which will be decided in the course of this hearing.

The bench stayed the floor test, as fixed by the High Court to take place on April 29 and has promised the counsel to complete the hearing and deliver its judgment before the court breaks for summer vacation.

Hopefully, the Supreme Court’s hearing of this case and its judgment in the one against the President’s Rule in Arunachal Pradesh, which has been reserved, will throw further light on the scope of the central government’s power under Article 356 to dismiss state governments, and of judicial review in offering prompt relief to the ousted chief minister, in cases of abuse of the provision.

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