The apex court’s verdict in the Arunachal Pradesh case must reinforce the gains in constitutional law made in the post-Bommai era so as to curtail political mischief and uphold the best traditions of democracy
Although the era of reckless use of Article 356 is now behind us ever since the significant judgement of the Supreme Court in the Bommai case, there is no running away from the fact that political ingenuity can manufacture situations that no legal draftsman or judge can ever anticipate. The latest imbroglio in Arunachal Pradesh, leading to imposition of President’s Rule in the State is a case in point.
The State has come under Central Rule following a bizarre turn of events last December following dissensions in the ruling Congress. The drama unfolded as follows: Rebel MlAs wanted the Assembly to be convened to vote out the Government; the Government was in no hurry to convene the Session; the Governor bypassed the State Government and summoned the Assembly; the Speaker, aligned to the Chief Minister, disqualified 14 of the rebels and “locked” the State Assembly complex; Congress rebels teamed up with Bharatiya Janata Party MlAs in the opposition and some independents, “convened” the State Assembly in a community hall and “impeached” the Speaker; thereafter, they met in a local hotel and “voted out” the Chief Minister and elected a rebel Congress MlA in his place.
Following these events, the Governor sent a series of report to the Centre and informed it of the constitutional breakdown in the State and the Centre responded by imposing President’s Rule in the State. The Assembly has been kept in suspended animation. The matter is now before a Constitution Bench of the Supreme Court.
The Supreme Court virtually put an end to the gross misuse of Article 356 by the Union Government when a nine-judge bench delivered its verdict in 1994 in what is popularly known as the Bommai case. The conclusions of the court in this case can be summarised as follows:
i) The validity of the proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the proclamation was issued in the mala fide exercise of power. When a prima facie case is made out in the challenge to the proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist and such material may be either the report of the governor or other than the report.
ii) Article 74(2) is not a bar against the scrutiny of material on the basis of which the President had arrived at his satisfaction.
iii) It will not be permissible for the President to exercise powers under sub-clauses (a), (b) and (c) of clause (1) of Article 356 to take irreversible actions till at least both the Houses of Parliament have approved of the proclamation. It is for this reason that the President will not be justified in dissolving the legislative Assembly by using the powers of the governor till at least, both the Houses of Parliament approve of the proclamation.
iv) If the proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the court to restore the status quo ante to the issuance of the proclamation and hence to restore the legislative Assembly and the Ministry.
v) In appropriate cases, the court will have the power by an interim injunction, to restrain the holding of fresh elections to the legislative Assembly pending the final disposal of the challenge to the validity of the proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless.
vi) While restoring the status quo ante, it will be open to the court to mould the relief suitably.
vii) Secularism is a part of the basic structure of the Constitution. The acts of the State Government which are calculated to subvert and sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to the situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
This is now the law of the land and this judgement has the following implications in respect of the developments in Arunachal Pradesh.
Article 74(2), which shielded the advice given to the President from judicial scrutiny, stands partially breached. This Article says “The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court”. The Bommai judgement has declared that Article74 (2) is not a bar against the court scrutinising the material “on the basis of which the President arrived at his satisfaction”. Therefore, unlike in the pre-Bommai phase, the reports submitted by the Governor of the State are subject to the court’s scrutiny; Second, the Bommai judgement prohibits the Union Government from taking any irreversible actions like dissolution of the State Assembly and ordering of fresh elections until the two Houses of Parliament have ratified the imposition of President’s Rule. Hence, the Assembly has been kept in suspended animation.
Further, the two Houses of Parliament have to ratify the Centre’s decision within two months. However, in the present case, since the ruling coalition does not enjoy a majority in the Rajya Sabha, ratification of President’s Rule by the upper House seems highly unlikely.
As regards the conduct of the Governor, all that can be said on his behalf is that he did not order a parade of MlAs in Raj Bhavan like Governors did in the pre-Bommai era. Instead, he wanted an early floor test in the Assembly. But, could he convene the Assembly without the advice of the State CabinetIJ And can the Assembly meet in some community hallIJ The conduct of the Speaker too will come under close scrutiny. We must await the verdict of the Supreme Court on all these issues and hope that advances made in the post-Bommai era in constitutional law and in enforcing the best traditions of democracy, is further reinforced to curtail political mischief.