Wednesday, February 8, 2023

Use Article 356 Sparingly: SC tells government

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The apex court judgment in the SR Bommai vs Union of India case clearly said that Article 356 cannot be imposed for superseding a duly constituted ministry
By Mary Mitzy and Navank Shekhar Mishra

Even as the Uttarakhand crisis continues to fester, a division bench of its High Court defe-rred the floor test in the assembly which was slated for March 31 until April 7. The bench of Chief Justice KM Joseph and Justice VK Bist stayed the earlier order of Justice UC Dhyani of the same Court and posted the matter for April 6. That’s when a final hearing of the writ petition of Chief Minister Harish Rawat challenging the imposition of president’s rule in the state will be taken up.

President’s rule can be imposed on states based on Article 356 of the constitution when there is a failure of the constitutional machinery. Was Uttarakhand a likely candidate for this? Let us see the course of events in the state.

On March 18, nine Congress MLAs, along with 27 BJP legislators, met Governor KK Paul and demanded dismissal of Rawat’s Congress government. They had all voted against the Appropriation Bill, which Rawat claims was “constitutionally” passed in the assembly. However, according to the center, the assembly did not pass the Finance Bill for 2016-17 on the last day of its sitting. On March 19, the speaker issued a show cause notice to these nine MLAs on the disqualification petition filed by the chief whip of the Congress Legislative Party. The same day, the governor directed the CM to seek a vote of confidence at the earliest but not later than March 28. The CM wrote back that the vote of confidence would be sought on March 28.

On March 22, both the BJP and the Congress urged the President to resolve the crisis. On March 26, one of the rebels, Harak Singh, presented a sting video which showed Rawat discussing amounts of money to win back rebel MLAs. Meanwhile, between March 26 and 27, to the surprise of everyone, the Union cabinet discussed the issue of Uttarakhand and on March 27, president’s rule was imposed there. Rawat moved the Uttara-khand High Court, which on March 29 said a floor test should take place on March 31. It also said that the nine MLAs can vote but their voting would be done under the supervision of the Registrar-General.

Interestingly, both parties approached the division bench of the High Court challenging the interim order of the single-bench of the High Court. While Rawat and his cabinet challenged the order permitting the nine disqualified MLAs to participate in the voting, the government challenged it for allowing voting when President’s Rule had been imposed. And on March 30, the division bench deferred the floor test and asked the Union government to explain what was the hurry in imposing President’s Rule. It adjourned the case till April 6.


These are the salient features of the earlier order passed by Justice UC Dhyani:

-The only agenda of the session of the Uttarakhand assembly which meets on March 31 will be the vote of confidence.

-All MLAs shall be entitled to take part in the floor test, with, without or despite their disqualification.

-The result of the vote of confidence shall be kept by the Speaker in a sealed cover and submitted to the Court at the earliest. The votes of disqualified members shall be kept separate.

-The Chief Justice of this High Court may consider a request for nominating a Reg-istrar of this Court as an observer.

-This Court directs the chief secretary, principal secretary (Home) and Director General of Police to see that all members of the legislative assembly attend it freely, safely and securely.


In this regard, it is important to see the observations of the Supreme Court in the landmark SR Bommai vs Union of India (1994) 3 SCC 1 which spoke about the scope of Article 356 which allows president’s rule in states. It observed: “The exercise of the power under article 356 is an extraordinary one and needs to be used sparingly when the situation contemplated by article 356 warrants to maintain democratic form of government and to prevent paralysing of the political process. Single or individual act or acts of violation of the constitution for good, bad or indifferent administrations does not necessarily constitute failure of the constitutional machinery or characterizes that a situation has arisen in which the government of the state cannot be carried on in accordance with the constitution.”

It also laid down the following guidelines:

-Emergency imposed by Presidential Pro-clamation is subject to judicial review.

-The burden lies upon the Government of India to prove that relevant material existed to justify the issue of proclamation.

-If the court strikes down the proclamation, it has the power to restore the dismissed state government to office.

-The court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.

The SC clearly subscribed to the view that Article 356 is an exceptional power and can be used only in special situations. It quoted the Sarkaria Commission Report to give examples of situations when such powers should not be used. It made it clear that Article 356 cannot be imposed for superseding a duly constituted ministry.

Another significant judgment in this regard was in the State of Rajasthan vs Union of India (1977) 2 SCC 592 case where it was observed by Justice Fazal Ali: “As our constitution is wedded to the democratic pattern of government, if a particular state government ceases to be democratic or acts in an undemocratic fashion, it cannot be said that the government of the state is carried on in accordance with the provisions of the constitution.”

In the same judgment, Justice PN Bhagwati observed: “The satisfaction of the President is a condition precedent to the exercise of power under article 356 clause 1 and if it can be shown that there is no satisfaction of the president at all, the exercise of the power would be constitutionally invalid. Of course by reason of cl. 1 sub cl.5 of article 356 the satisfaction of the president is final and conclusive and cannot be assailed on any ground….But one thing is certain that if the satisfaction is malafide or is based on wholly extraneous and irrelevant grounds , the court would have jurisdiction to examine it, because in that case there would be no satisfaction of the president in regard to the matter in which he is required to be satisfied.”

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