Editorial Today – Uttarakhand Constitutional Crisis

Uttarakhand HC sets aside President’s Rule

Background
Union government has imposed president rule in Uttarakhand using Artcle 356 of the constitution but Uttarakhand High Court has quashed this order.

What is the provision of Article 356?
According to this Article if the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution then he could impose president rule on advice from Union Cabinet i.e. Article 356, empowers the president to dismiss a state government on the advice of the Union cabinet.

This Article was deemed as dead letter by BR Ambedkar but it is one of the most misused article of the constitution.

Guidelines given by the Supreme Court for using this article:

Supreme Court in its landmark judgment in S. R. Bommai case gave the following guidelines to curb the misuse of this provision.

1. Strength of the government should be tested on the floor of the house and not elsewhere i.e. Governor cannot decide whether a government has requisite strength or not and it should be done through floor test only.
2. After imposing president rule the legislature should not be dissolved immediately. Rather it should remain in suspension.
3. If malafide intention is found then the court can restore the government.

Reason given by centre for imposing President rule

1. It was claimed that the state government could not get the Appropriation Bill passed and this led to a situation in which the government could not function in accordance with the constitution.

But some experts believe that according to the speaker’s statement, the Appropriation Bill was passed by voice vote on March 18. As per the procedure and practice, this bill is passed by voice vote and no division (recording of vote) is held or allowed, as such a bill is used to authorize the government to appropriate the money from a consolidated fund that has just been voted by the assembly. Once the house has voted the grants, the bill to authorize the appropriation of the same grants cannot be opposed. Article 204 bars even amendments to such a bill. Given that the Uttarakhand assembly had voted the grants, any demand for a division of vote is against the constitution and well-established parliamentary practices. Thus, the imposition of president’s rule on the ground that the Appropriation Bill could not be passed is unconstitutional.

Who decides if an Appropriation Bill has been passed? It is only the speaker, and the Constitution does not recognize any other authority to decide on this question.

Article 212 provides house proceedings immunity from being called into question before a court of law. Even when the speaker refuses to order a division of vote when it is demanded for other bills, it could be considered a procedural irregularity, which the court will not look into.

This position was settled in 1952 in the State of Bihar v. Kameshwar Singh case. In this case, a bill passed by the Bihar assembly was challenged inter alia on the grounds that the speaker did not formally put a motion before the assembly to pass the bill, and thus it was contended that the bill had not been passed. The Supreme Court relied on the speaker’s endorsement of the bill to signify that it had, in fact, been passed, going on to say that it was a procedural irregularity and Article 212 bars the court from looking into it.

This immunity has been provided to the proceedings of a legislative house because otherwise there may be frequent challenges in the courts, and the house will be unable to function with absolute freedom – which is its privilege.

2. Bribery as grounds for imposition of president’s rule
Governor asked former chief minister to prove his majority in the assembly on March 28, after nine Congress members broke away from the party. The governor acted perfectly in accordance with the directions of the Supreme Court in the Bommai case.

But a day before the floor test was to be held, the Union cabinet held an emergency meeting and advised President Pranab Mukherjee to impose Central rule in the state. But President’s rule should have become an option only after the floor test.

The decision was based on a sting operation showing the CM offering money to MLAs for support. This means that president’s rule was imposed on the ground that the chief minister had attempted to bribe some legislators for their support.

But experts believe that this reason is alien to Article 356. At best it could be the basis of a petition against the chief minister under the Prevention of Corruption Act, but it certainly does not justify the imposition of president’s rule.

Reason given by court for quashing the judgement
According to the court the governor’s report on the situation in the state, did not match the claims made in the Union cabinet’s note recommending president’s rule.
The Centre was looking with a “magnifying lens” for an “opportunity” in state assemblies to “impose” president’s rule. The court also remarked that the Centre was taking away the power of an elected government and introducing chaos.

Thus quashed the decision.