Polity (Role of Governor in Indian Polity) by Viraj C. Rane

Model Answer

Question #1. Article 356 is neither a dead letter as envisaged nor a deadly weapon in the hands of Union government. Elucidate.  10 marks (150 words)

Approach

1. Briefly introduce Article 356
2. Explain Article 356 is not a dead letter
3. Explain Article 356 is not a deadly weapon
4. Conclude with the awareness and use of Article 356

Hints:

 Article 356 of the Indian Constitution providing imposition of President Rule in the State was once again in the news due to its imposition in Jammu and Kashmir. The Article owes its genesis to Section 93 of the Government of India Act, 1935, a section which essentially dealt with the taking over of the Provincial Government by the Governor.

Article 356 is not a dead letter:

• Like ordinances, the Constitution-makers intended for Article 356 to be used only as an 'emergency provision'. During constituent assembly debates, Dr.Ambedkar made clear and hoped that Article 356 would remain a "dead letter".
• A cursory glance at the data shows that this has been far from the truth. Sarkaria Commission notes that since independence, it has been used over 100 times. Perfectly legitimate stategovernments have sometimes been fired to either make them fall in line or to give the Union government's own party a chance to come power in the state.

1970s and 80s will be remembered for the most spiteful use of Article 356. From the year 1971 to 1984, it was used 59 times with maximum being used in the period 1977-79 during which Morarji Desai government ruled. It was used by the post-emergency Central government as vendetta against Congress-ruled state governments. Later, Indira Gandhi returned the favour after storming back to power in 1980 and during the period 1980-84 it was used 17 times.

• Though Article 356 had been misused even by Jawaharlal Nehru to dismiss the majority Communist government of Kerala, Indira Gandhi is synonymous with having used it as a weapon against state governments. Its frequency increased sharply post-1967 when Congress party lost power in several states in India.
• In fact, Indira Gandhi during emergency closed judicial review of even the Presidential order clamping Article 356 through the 38th Constitutional Amendment. However, the 44th Constitutional Amendment Act brought forth in 1978 by Morarji Desai, the original Article 356, as envisaged by Dr.Ambedkar, was restored.
• Manipur has seen the most frequent application of Article 356. The deeply fragmented internal politics of the state, as well as long periods of violence, have often enabled the Union government to impose its fiat on the state. Besides Manipur, the politically crucial states of Uttar Pradesh and Bihar, with their fragmented polity, have been on the centre's radar for long.

Article 356 is not a deadly weapon:

• The frequency of using Article 356 has been greatly reduced since mid-1990s despite an increasingly higher number of states being ruled by parties other than that in the central government. This happened due to many factors: emboldening of regional parties, activist President and intervention by the Supreme Court.
• The mid-1990s witnessed fundamental change in the nature of Union governments as coalition governments came into power. The mid-1990s marked by the rise of regional parties that lent an increasingly opportunistic and volatile character to Indian polity.
• Former President K.R.Narayananis known for his activist role. President Narayanan returned for reconsideration the advices from the Union cabinet to impose President's rule in in Uttar Pradesh and Bihar.
• In 1994, the Supreme Court delivered the landmark SR Bommai judgment where the Court discussed at length provisions of Article 356 and related issues. This case has huge impact on Centre-State Relations. The misuse of Article 356 has minimized after this judgment.

Still, Article 356 is misused many times but awareness and political conditions have restricted its misuse.

Supplementary Notes Article 356 –

Provisions in case of failure of constitutional machinery in States

1. 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 this Constitution, the President may by Proclamation:

 (a) Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of the Parliament.

(c) Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions forsuspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts

2. Any such Proclamation may be revoked or varied by a subsequent Proclamation.
3. Every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
4. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation:

Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years: Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People: Provided also that in the case of the Proclamation issued under clause

 (1) on the 11th day of May, 1987 with respect to the State of Punjab the reference in the first provisio to this clause to "three years" shall be construed as a reference to Five years.

5. Notwithstanding anything contained in clause

(4), a resolution with respect to the continuance in force of a Proclamation approved under clause

(3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either House of Parliament unless:

(a) A Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution; and

(b) The Election Commission certifies that the continuance in force of the Proclamation approved under clause

(3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned: Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab.

Question #2. The Supreme Court recently held that the Governor of a State can pardon prisoners, including death row ones. Explaining Governor’s pardoning power; discuss how it differs from pardoning powers of the President. 15 marks (250 words)

Approach

• Briefly discuss pardoning power in Indian context
• Explaining Governor’s pardoning power
• Discuss differences between pardoning powers of the President and the governor
• Conclusion

Hint:

The power of pardon is the power to relieve a person of the legal sanctions imposed for illegal conduct—was reluctantly put in the hands of the President by the constitutional conventions of a nation.

Under article 72 President has the power to grant pardon and under article 161 Governor of a state has the power to grant pardon.

Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government

Pardoning powers of Governor of a state:

• Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
• The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
• Thus, this Article empowers the Governors of States to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of a person convicted of an offence against a law relating to a matter to which the executive powers of the State extends.
• Recently, the Supreme Court held that the Governor of a State,using his powers under Article 161 of the Constitution, can pardon prisoners, including death row ones, even before they have served a minimum 14 years of prison sentence.
• Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government. Thus, the Governor could exercise his remission powers under Article 161 only on the aid and advice of the council of ministers headed by the chief minister.

Difference between pardoning powers of President and Governor:

The pardoning power of Executive is very significant as it corrects the errors of judiciary. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The process of granting pardon is simpler but because of the lethargy of the government and political considerations, disposal of mercy petitions is delayed. Therefore, there is an urgent need to make amendment in law of pardoning to make sure that clemency petitions are disposed quickly.