Friday, November 09, 2007

Karnataka circus: Lessons on the use of Article 356

Now that President’s rule has been revoked in Karnataka, to facilitate the assumption of office by the BJP-led Government, it is perhaps time to look back and examine how the events ought to have evolved.

Most analysts (including edit writers) had assumed that imposition of President’s rule in Karnataka on October 9 was something inevitable, following the resignation of H.D.Kumaraswamy Government after the withdrawal of support by the BJP, a coalition partner of Janata Dal (Secular). The Governor, Rameshwar Thakur recommended President’s rule probably on the belief that inability to form a Government by any political party/parties is equivalent to failure of constitutional machinery – as all the three parties, the BJP, JD(S) and the Congress-I pleaded their inability to form the Government and suggested President’s rule , dissolution of assembly, and fresh elections as a solution.

This was exactly what Buta Singh as Governor of Bihar did in 2005 after the Bihar assembly elections when none of the parties was in a position to stake claim to form the Government. Singh quoted, in his report to the President dated 6.3.05, paragraph 153 of Bommai Judgment to support his view. However, it is clear that the expression ‘failure of constitutional machinery’ contained in Paragraph 153 of the Bommai judgment is Justice K.Ramaswamy’s minority opinion.

Further, the expression ‘failure of constitutional machinery in States’ occurs only in the marginal note of Article 356, whereas the provisions of Article 356(1) are plain, clear, simple and unambiguous, according to which a situation must have arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. According to Maxwell (Interpretation of Statutes), the headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words.

The right course for the Governor on October 9 was to ask Kumaraswamy to continue in power till alternative arrangements were made, including holding of fresh elections, as urged by all the parties on October 9, rather than recommend President’s rule.

Another myth or misconception which well-known analysts have assumed is that once the President’s Rule is imposed, and assembly is kept under suspended animation, according to the Bommai judgment, within two months, Parliament must approve the Proclamation, and only then the President can dissolve the assembly. For revoking the Proclamation, Parliament’s approval is not necessary. If Parliament does not approve the Proclamation within two months, then the assembly and the dismissed Government spring back to life.

Here the myth is the assumption that only the President has the power to dissolve the assembly, and that Parliament’s approval is a must. As per Article 174(2)(b), only the Governor can dissolve the Legislative Assembly, and this is an independent legislative power of the Governor. When the legislature is kept under suspended animation, under Article 356 (1) (b), the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Clearly, the assembly cannot dissolve itself, and has no such power. Even though the Governor is part of the Legislature, his power to dissolve is an independent power, and Parliament is not entrusted with this power under Article 356 (1) (b).

Again, under Article 356(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. Curiously, in the case of Bihar, the Proclamation dissolving the assembly (as distinct from the one imposing President’s rule) was not laid before Parliament in 2005. The Government did not bother about securing the Parliament’s approval for the dissolution either, before going ahead with the elections. Even the E.C. connived at this gross defiance of the Constitution. The Supreme Court’s judgment in the Rameshwar Prasad case, delivered in January 2006 is also silent on this.

The long interregnum between the BJP’s staking of claim to form the Government and the revoking of the President’s rule (there was a delay of 13 days), has been explained by the fact that the Proclamation imposing President’s rule had suspended Article 164 – which facilitates the appointment of Chief Ministers and other Ministers by the Governor. Therefore, it is important to ask whether suspension of this article with every Proclamation imposing President’s rule is necessary. The Proclamation does not even disclose the objects required to be fulfilled as contemplated under A.356 (1) ©.
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