Reading time: 8-10 minutes.
In the several states of India, a State Government is run by a body of democratically elected Council of Ministers led by the Chief Minister which is responsible to the State Legislative Assembly (Vidhan Sabha). The Chief Minister is the de facto chief executive of the State while the Governor is only a de jure constitutional head. In a situation where the State Government is unable to function as per the provisions of the Constitution, President’s/Governor’s Rule gets imposed and the Central Government, via the Governor of the State, exercises direct control on the governance of the State. The President’s Rule results in the suspension of the State Legislature, the Council of Ministers is dissolved, the Chief Minister vacates his office and the Governor becomes the Constitutional head of the State.
On 27th April 2020, Governor’s rule was imposed on BTAD i.e. Bodo Territorial Area Districts, which is one of the tribal regions of Assam. This action was taken due to the inability declared by the state election commission, which is responsible for conducting elections in the region for electing the Bodoland Territorial Council (BTC), to conduct the election of this term which were scheduled to be held on April 4, 2020. The reason mentioned by the state election commission for the inability to conduct elections was the worldwide pandemic COVID-19. The state election commission said that the safety and life of the citizens is of utmost importance and will be staked during the humdrum of elections and the same was also ratified by the state legislature.
To ensure smooth functioning of the region to continue, the Bodoland People’s Front (BPF) proposed for the extension of its tenure but imposition of governor’s rule was given as a counter proposal to this by the ruling alliance comprising BJP, Asom Gana Parishad and Bodoland People’s Front (BPF).
The Sixth Schedule of the constitution, which formulates rules applicable to the tribal areas in the State of Assam was prepared by the Drafting Committee on the basis of the recommendations of the Bordoloi Committee. This Schedule deals with the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram as per Article 244.
The provision of Governor’s rule currently proclaimed in BTAD finds it’s mention in sub para (2) of para 16 of the sixth schedule which says that once the governor’s rule has been imposed, the governor acquires the functions exercisable by and powers vested in the District Council or the Regional Council. It can make laws on certain specified matters like, land, forests, shifting cultivation or jhum, village admin, inheritance of property, social customs, (para10) Power of District Council to make regulations for the control of money-lending and trading by non-tribals, to establish primary schools, etc para 6, to assess and collect land revenue and to impose taxes para 8. Conferment of powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences.
The following are the salient features of the provision of Governor’s Rule, in light of the recent development:
- Governor Rule results in the State Council of Ministers being dissolved and the vacation of the Chief Minister’s office.
- The Governor becomes the de facto executive of the State.
- Governor Rule can be imposed in State for six months, only after the approval of both the Houses of the Parliament.
- It can be imposed for a maximum period of three years, only after the approval of the Parliament Houses which needs to be done every six months.
- The President may revoke President Rule at any point of time without the approval of the Parliament.
- After the 44th Amendment Act of 1978, President Rule may be extended over a year only under the following conditions:
- In case of a prevailing National Emergency throughout the country or an entire state or a particular part of the state.
- Due to valid reasons, the Election Commission confirms that elections cannot be conducted in that respective state.
Article 356 of the Constitution of India lays down the provisions in case of failure of constitutional machinery in States. As per Article 356, if the President receives a report from the Governor of a State or otherwise 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 may by Proclamation impose President’s Rule, as explained earlier, in that respective State.
The word ‘satisfied’ in Article 356(1) does not refer to the personal satisfaction of the Governor but it refers to the satisfaction of the Cabinet in the Parliament.
It is to be noted that the President acts on a report of the Governor or otherwise. Therefore, it means that the President may act even without a report by the Governor.
In the case, the State of Rajasthan v. Union of India, AIR 1977 SC 1361, in which a Constitutional Bench of the Supreme Court of India laid down several important interpretations of Article 356. Held, the satisfaction of the President can, however, be challenged on two grounds:-
- It has been exercised mala fide.
- Based on wholly extraneous and irrelevant grounds, because in that case, it would be no satisfaction of the President.
The Court also held that under sub-section (5) of Article 356, notwithstanding anything in the
Constitution, the satisfaction of the President in clause (1) of the Article shall be final and conclusive and shall not be questioned in any court on any ground.
In the case, S.R. Bommai v. Union of India, (1994) 3 SCC 1, in which a Constitutional Bench of the Supreme Court of India laid down the Judicial Guidelines for imposing President’s Rule:-
- Presidential proclamation dissolving a State Legislative Assembly is subject to a judicial review.
- If a State Government works against secularism, President’s Rule can be imposed.
- There can be no wholesale dismissal of opposition ruled State governments when a new political party assumes power at the Centre.
- If the President’s Rule is imposed only on political considerations the Court can even restore the assembly.
- The imposition of President’s Rule and dissolution of the State Assembly cannot be done together.
- State Assembly can be dissolved only after the Parliament approves Central Rule.
- The Supreme Court or a High Court can compel the Union Government to disclose the material on whose basis President’s Rule is imposed on a State.
- The power of the President under Article 356 is a constitutional power and not an absolute power. The existence of material is a pre-condition to form the satisfaction to impose the President’s Rule.
Significance of this development
The Preamble of the Constitution of India proclaims the Republic of India as a Sovereign Socialist Secular Democratic Republic. Elections form the bedrock in making India, the largest democracy in the world. Elections help in giving people a voice to assert their views and options by choosing a leader for themselves whose priorities and ideas match with them. Elections also form a platform for the public to express their displeasure towards the ruling party. Election works as a self-corrective system where the public reviews the performance of the political parties every five years.
In Assam’s, Bodoland Territorial Region elections were to be held on 4th April 2020, which got postponed due to the prevailing Covid-19 pandemic. The previous council’s term had ended on 27th April 2020 and therefore, the administration of the region cannot be implemented in accordance with the provisions of the Constitution. Such prevailing situation has satisfied the Governor and therefore, Governor’s Rule has been imposed in the region under Article 356.
The imposition of Governor’s Rule in the BTR is quite significant as it not only protects the provisions of the Constitutions but also the rights of the people in the region. This development is well within the provisions of Article 356 and hence cannot be termed ultra vires the Constitution. The Houses of the Parliament can pass such a proclamation from the President when the Election Commission confirms its incapability is holding the general elections.
It has been argued at many instances that the President’s Rule enshrined under article 356 and the Governor’s Rule provide the executives with wide range of powers which have been misused too. This feature has thus been viewed with hostility. It is also brought to discussion that the Sixth Schedule also vests enormous powers to the Governor. Members of the various ADCs, in this context are of the opinion that the Governors are mere puppets in the hands of the Ministers. Both the Sarkaria and M.M. Punchhi Commissions seem to hint at this. Under the constitutional scheme of Article 356 gives the President the power to assume to himself all or any functions of the state and Parliament can perform the functions of the state legislature but barring the President to assume powers of the courts of law.
Through this the president also suspends portions of the Constitution, the part which gets suspended is the proviso to Article 3 (Parliament to create or divide States and alter their boundaries), saying the President must refer any proposal to alter a State’s name or boundaries to the State legislature for its views. This infers that the Centre in the realm of law and policy, may issue orders or enact laws that fundamentally alter the State’s basic function of policy making. This schema hence poses a real danger to the will of the people of the state.
The phrase ‘is satisfied’ mentioned in the statute, is used to give a rationale behind the governor’s action of declaring the president’s/governor’s rule. This phrase can be made responsible to create a loophole upon which the ‘rule’ is criticized or is questioned upon or is said to be unconstitutional. Through this a lacuna is created, which henceforth creates a vacuum over a viable and rightful interpretation. It hence, gives a chance to put forth or assume or take upon plethora of interpretations providing discretionary and unlimited powers to the executive.
Albeit the criticism being so prevalent there have been views that safeguard these provisions and also provide strength to their arguments with constitutional basis. It has been said that the principles of Interpretation are well established. Chief Justice Marshall in McCulloch v. Maryland said that, “It should always be borne in mind, there is bound to be difference in emphasis as well as in approach, in interpreting a Constitution which is so detailed.” In Ogden v. Saunders Chief Justice Marshall said that, “In considering the question, then we must never forget, that it is a Constitution, we are expounding, a constitution intended to endure for ages and consequently to be adapted to the various crisis of human affairs. The framers of the constitution certainly had in mind some degree of permanence. They did not imagine that it was to be so strictly interpreted that amendments and radical revisions would be constantly required to keep Government functioning smoothly.”
The entire scheme of the Indian Constitution makes it dear that the framers of the constitution preferred the Cabinet system of the Government to that of a Presidential type prevalent in the United States. But none-the-less both the types belong to the same genus of democratic system. The fact that the framers have adopted Cabinet system does not necessarily mean that all the conventions of the British Cabinet System have been imported wholesale into the constitution of India. Commenting on the provisions for the President’s Rule and Governor’s Rule due mention has been made to the fact that the executives are to function upon the advice and guidance of the legislature.
It is not mandatory to adhere to the advice but they statute nowhere mentions about the noncompliance or, to say in unadorned word, the executives given the power to do whatever they want. The framers of the constitution laid the provisions with an ultimate aim of smooth functioning of the federal system keeping harmony amongst them for social welfare. Hence, it can be said that the Governor’s rule sails through a conundrum of its interpretation and execution.
Under the constitutional scheme, the Governor’s mandate is substantial. Tasked with overseeing government formation, to reporting on the breakdown of constitutional machinery in a State, to maintaining the chain of command between the Centre and the State, he can also reserve his assent to Bills passed by the State Legislature and promulgate ordinances if the need arises. To specifically mention about the Governor’s Rule its main aim is to ensure stability in the administration of the tribal areas in times of distress or lack of efficiency.
Just the way a coin has two sides so does this rule. It has its gains and shortcomings too. But what should be expected from the bulwarks of constitution is to not have a blind-eye in favour of something and from the critiques to never forget that every cloud has a silver lining.
Authors: Ramya Singh from Dr. Ram Manohar Lohiya National Law Univeristy Lucknow and Manish Jain from Ramaiah Institute of Legal Studies.
Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.