Updated: Jan 24
Andhra Pradesh High Court decides to ask the state government, Andhra Pradesh to come up and argue about the breakdown of constitutional machinery in the state.
This, to be used as an aid to impose Article 356 i.e. President's Rule in the state.
This is a clear case of judicial outreach as rightly pointed out by the SC when approached by the state government.Let's talk why.
But, a little background first.
"If the president on receipt of a report from the Governor of a 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 the Constitution, then the President's Rule can be imposed"
This otherwise is the catch here.
This otherwise may include the President's last night dream of a constitutional breakdown in a particular state.
These mighty powers of dismissing the elected Government representatives lies in the hands of non-elected, appointed individuals- the governor of a state and the president of the country.
TO USE OR NOT TO USE; DEATH NOTE TO DEADLY WEAPON
I need not tell you how wisely and widely this "emergency" provision has been interpreted to dismiss many state Governments over time.
In the very first invocation of Article 356 in 1951, the central government removed the Gopi Chand Bhargava ministry in Punjab though he enjoyed the majority.
In 1959, it was used against the majority opposition government of the E.M.S. Namboodripad government in Kerala.
Indira Gandhi used Article 356 as many as 27 times.
The most notable case of non-use of Article 356 was the refusal of the P.V. Narasimha Rao government prior to the demolition of the Babri Masjid.
When the Janata party was in power headed by Morarji Desai, he imposed President's Rule in nine states where Congress was in power.
The two-year term of Morarji Desai from 1977-79 saw the provision being imposed for sixteen times.
WHERE LIES THE FLAW?
The Governor is to a state as the President is to the country, in our quasi-federal polity. Both of them are not reflective of election results but are appointed to hold these positions.
Our constitution makers left the appointment of the State Governor to the central executive and not to the choice of the state or its ruling party. I don't really know why. Maybe because two Chief Ministers from the same party ruling one state would be a hard struggle.
Now when the ruling party at the center was not in likely terms( mostly before elections) with a state's government, (more when it is formed by a different party) they could overthrow the government by invoking article 356 a.k.a President's Rule.
There are instances when there was a need to invoke the article but was not invoked, like in cases of predictable communal riots and violence.
WHY DO THIS ARTICLE STILL MAKE IT TO THE CONSTITUTION?
Interestingly,the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend from the Government of India Act 1935.
The provision which we had opposed during our freedom struggle was incorporated in the Constitution .
I don't doubt the farsightedness and finesse of our Constitution makers. Nor should you. There has been ample discussion and scrutiny over the need for an emergency provision like
nowhere in any country.
Here is what Dr. B R Ambedkar had to say about the Provision.
"I share the sentiments that such articles will never be called into operation and they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article."
To bind together the federal system of our polity these pro unitary powers were employed as a means to safeguard integrity of the country.But these intentions of our constitution fathers were not realised by the people using the provision.
This is the only form of emergency out of the three emergency provisions provided by the constitution which talks about the breakdown of constitutional machinery.
Now , coming to the question- What's wrong in High Court trying to help the governor.
Is't it good, the constitutional bodies living in harmony , helping each other?
Well, ideally, NO. The more independent they are the more functionalism they establish.
WHY CAN THE COURT NOT HELP THE GOVERNOR?
Here in the case of Andhra Pradesh, the high court is said to have showed judicial activism.
The courts are not expected to be this generous and helping in matters not on their table yet.
The provision is not outside the jurisdiction of the high court and is now subjected to judicial review after the SI Bommai case of 1994.
While the subjective satisfaction of the President regarding such a breakdown is beyond judicial scrutiny, the material on which such satisfaction is based could certainly be analysed by the judiciary, including the Governor’s report.
In the S.R. Bommai case, a nine-member bench of the Supreme Court construed the scope of Article 356.
This included ascertaining whether objective conditions exist which render it impossible to carry out governance in the State where the proclamation has been made and the process has to be approved by both Houses of Parliament before consideration for judicial review.
These measures couldn't prove to be solid checks for misuse of the provision.Fine tuning the role of Governor is the way forward.