Context

The recent order of the Andhra Pradesh High Court directing the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’ has been found ‘disturbing’ by the Supreme Court.

Though the Supreme Court has stayed the order, there is need of deeper observation into the provisions of Article 356.

Background

• The power to decide whether there is constitutional breakdown in any State that calls for imposition of President’s rule rests entirely in the executive under Article 356 of the Constitution.
• The Andhra Pradesh High Court passed an interim order on 1 October, calling on the senior counsel appearing for the State to come prepared to assist the court as to whether in circumstances prevailing in the State the court can record a finding that there is constitutional breakdown in Andhra Pradesh.
• The order was passed in 14 habeas corpus petitions.

The high court order  The Andhra Pradesh high court bench comprising Rakesh Kumar and J. Uma Devi had passed the order in a habeas corpus case on October 1. The case, Reddi Govinda Rao, S/o Reddy Akku Naidu v The State of Andhra Pradesh and others was clubbed with 16 similar habeas corpus petitions alleging police excesses.   While hearing this case, the high court bench directed that “on the next date, learned senior counsel appearing on behalf of the State may come prepared to assist the court as to whether in the circumstances, which are prevailing in the state of Andhra Pradesh, the court can record a finding that there is constitutional breakdown in the state or not”. The state government filed an interlocutory application before the bench to recall the order, which was declined.

• The Supreme Court found the High Court order, a prelude to getting the Andhra Pradesh government of YSR Jaganmohan Reddy dismissed, ‘disturbing’.
• Heading a three-judge Bench, Chief Justice of India SA Bobde stayed the AP High Court order saying, as the apex court, “we find this order disturbing.”
• The High Court’s order violates the Basic Structure doctrine of the Constitution and seemed to have reversed the judgment of the nine judge apex court Bench in the SR Bommai case laying down the scope of Article 356.

Analysis

What is Article 356?

• Article 356 of the constitution – dealing with provisions in case of failure of constitutional machinery in a state – beginsunder sub-clause (1) as follows: 

“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, the President may by proclamation, assume to himself…”

• The determination of the breakdown of constitutional machinery may be done by the President at any time, either upon receipt of a report from the Governor, or suo motu.
• If approved by both the houses, the President’s Rule, as it is most-commonly called, can continue for 6 months.
• It can be extended for a maximum of 3 months with the approval of the Parliament.

Recent instances of President’s Rule Since the formation of the Republic, President’s Rule under Article 356 has been imposed in states in over 100 occasions. The recent instances are as given below: Jammu and Kashmir: After completion of six months of Governor’s rule, President Ram Nath Kovind on December 19, 2018, imposed President’s rule in the state, which had plunged into a political crisis after the Mehbooba Mufti-led coalition government collapsed. On June 12 this year, the Union Cabinet approved the extension of President’s rule in Jammu and Kashmir for another six months, beginning from July 3. Arunachal Pradesh: Arunachal Pradesh came under President’s Rule from December 16, 2015, to February 19, 2016, after Congress MLAs approached Governor JP Rajkhowa seeking to impeach Speaker Nabam Rebia. Delhi: President’s Rule was also in force in Delhi with the Assembly in suspended animation from February 14, 2014, to February 11, 2015, when Arvind Kejriwal resigned as the chief minister after his move to introduce the Jan Lokpal Bill fell through in the Assembly.  Maharashtra: Article 356 was also imposed in Maharashtra from September 28, 2014, to October 31, 2014, after chief minister Prithviraj Chavan resigned following the collapse of the 15-year-old Congress-NCP alliance in the state. Andhra Pradesh: The state faced the President’s Rule from February 28, 2014, to June 8, 2014. Jharkhand: President’s Rule was declared in Jharkhand from January 18, 2013, to July 12, 2013.

The lost key to the ‘Key word’

• The key word here is “otherwise”, which has been left undefined. 
• In the absence of the Governor’s report recommending President’s rule, the President can rely on any other material to arrive at the conclusion that the constitutional machinery in a state has collapsed.
• While considering the question of material, the Supreme Court had held that it is not the personal whim, wish, view or opinion or theipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. 
• In other words, as the apex court had held, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen.  
• The apex court had qualified this by saying that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from the material is certainly open to judicial review.   

How did this provision ‘originate’?

• No liberal democratic Constitution in the world has a provision such as Article 356 that gives the central government the power to dismiss a democratically-elected State government except the Constitution of Pakistan.
• Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
• Interestingly, the Indian leaders were so very opposed to this provision that they forced the British government to suspend it; thus, Section 93 of the Government of India Act, 1935 was never brought into effect.
• The provision which was opposed during the freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
• On June 11, 1947, it was agreed in the Constituent Assembly that the Governor could use this emergency power.
• By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre.
• Some important opposing views on the provisions are as below:
  • Govind Ballabh Pant did say that by mere elections, Governors will not become all wise.
  • B. Pant and Hirday Nath Kunzru opposed it and termed it as virtual reproduction of the 1935 Act. H.N. Kunzru defied the whip and voted against it.
  • Laxmi Kant Maitra and Tangutri Prakasam said that Indian Governors would not behave like British Governors who acted as agents of the Centre.
  • Alladi Krishnaswami justified the provision in the name of representative government at the Centre.
• Subsequent decades proved all of them wrong both in respect of Governors as well as the central government.
• After several revisions, provision became Article 278 (now Article 356). 

Conclusion

In the time, when Judiciary is itself in grim situation, the observations of the Andhra Pradesh High Court are worrisome. The order is a serious encroachment on the powers of the executive as enumerated under the Constitution and is thus violative of the doctrine of separation of powers, it said, while urging the apex court to set aside the order.