President’s Rule
Rescuing grace from disgrace
Note4Students
From UPSC perspective, the following things are important :
Prelims level: President and governor speeches
Mains level: the tradition of presidential and gubernatorial addresses to Parliament and Legislative Assemblies in India
Central Idea:
The article discusses the tradition of presidential and gubernatorial addresses to Parliament and Legislative Assemblies in India, highlighting the ceremonial and ritualistic nature of these events. It emphasizes the need for reform to streamline these addresses, suggesting a shift towards shorter, more concise speeches akin to the British practice, to save time and enhance efficiency in legislative proceedings.
Key Highlights:
- Presidential and gubernatorial addresses in India are steeped in tradition, characterized by elaborate ceremonies and rituals.
- The speeches are drafted by the government of the day, with little involvement from the heads of state, leading to lengthy and sometimes tiresome readings.
- Past presidents like R. Venkataraman and K.R. Narayanan exhibited meticulousness in reviewing draft speeches, suggesting improvements that were generally accepted.
- Similar experiences were observed at the state level, with governors making suggestions for changes to their addresses, sometimes leading to unexpected challenges.
- The article reflects on instances of political civility, where suggested changes were acknowledged and accommodated, despite time constraints.
- Despite the ceremonial nature of these addresses, controversy and turbulence in legislative assemblies have been on the rise, fueled by accusations and counter-accusations.
- The root cause of the problem lies in the disconnect between the writers and readers of these speeches, raising questions about ownership and relevance.
- The author proposes adopting a more concise format for these addresses, similar to the British model, to refocus attention on legislative business and mitigate political polarization.
Key Challenges:
- Resistance from governments accustomed to using these addresses as platforms to showcase their achievements and plans.
- Convincing stakeholders about the efficacy of shifting towards shorter, more focused speeches.
- Overcoming entrenched traditions and resistance to change within the political system.
- Balancing the ceremonial aspects of these addresses with the need for efficiency and relevance in legislative proceedings.
- Addressing political polarization between central and state governments, which may hinder collaborative efforts towards reform.
Main terms for answer quality enhancement:
- Presidential address
- Gubernatorial address
- Ceremonial
- Ritualistic
- Legislative proceedings
- Political polarization
- Tradition
- Efficiency
- Reform
Important Phrases:
- “Land of largely unquestioned custom, ceremonials, and rituals”
- “Suggesting changes by them difficult”
- “Saving of time and the avoiding of tedium”
- “Political civility”
- “Root of the problem”
- “Ornament of convention”
- “Collective body of legislators”
- “Innovative and self-denying Chief Minister”
Quotes:
- “When I am asked to read these Addresses, I feel like saying ‘Rashtrapati Bhavan’ and sitting down!” – R. Venkataraman
- “The speech was not mine, it was yours.” – Unnamed speaker to Nitish Kumar
- “Who Owns that Speech?” – Professor A.R. Venkatachalapathy
Anecdotes:
- R. Venkataraman’s meticulous review of draft speeches, despite tight timeframes.
- Chief Minister Buddhadeb Bhattacharjee’s prompt action to rectify an oversight in a gubernatorial address.
- The Governor of Bihar officiating a seamless legislative ceremony, earning appreciation from the Chief Minister.
Useful Statements for critical approach in answer writing:
- “The root of the problem lies in the foundational dichotomy of one agency writing the speech and another reading it.”
- “Presidents and Governors will, I think, be relieved with such a rearrangement.”
- “It will take an innovative and self-denying Chief Minister to start the reform to rescue a custom, ceremony, and ritual of grace from disgrace.”
Examples and References:
- Instances of past presidents and governors suggesting changes to draft speeches, with varying degrees of acceptance and acknowledgment.
- Comparison with the British practice of brief, outline-focused speeches by the head of state.
Facts and Data:
- Terms of past presidents and governors mentioned in the article (e.g., R. Venkataraman, K.R. Narayanan).
- References to specific events, such as the oversight in printing a gubernatorial address.
Critical Analysis:
- The article presents a nuanced critique of the ceremonial nature of presidential and gubernatorial addresses, highlighting inefficiencies and challenges.
- It underscores the importance of streamlining these addresses to enhance legislative efficiency and mitigate political polarization.
- The proposed reform aligns with the need for modernization and adaptation within the Indian political system.
Way Forward:
- Advocate for collaborative efforts among stakeholders to initiate reform and streamline the process of presidential and gubernatorial addresses.
- Emphasize the benefits of shorter, more focused speeches in enhancing legislative efficiency and relevance.
- Encourage political leaders to prioritize the collective interests of legislators and citizens over traditional ceremonies and rituals.
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President’s Rule
SR Bommai Judgment and its Relevance in Article 370 Verdict
Note4Students
From UPSC perspective, the following things are important :
Prelims level: SR Bommai Case
Mains level: NA
Central Idea
- The Supreme Court’s reliance on the 1994 SR Bommai judgment was pivotal in upholding the abrogation of Article 370.
- The SR Bommai case is a landmark judgment interpreting Article 356 of the Constitution, which deals with President’s rule in states.
SR Bommai Case: An Overview
- Origin of the Case: The case arose from the dismissal of the Janata Dal-led Karnataka government in 1989 by the Congress-led central government.
- Governor’s Recommendation: Karnataka Governor P Venkatasubbaiah recommended President’s rule citing the loss of majority by Chief Minister SR SR Bommai and the inability of other parties to form a government.
- Controversy: The move was controversial, especially as some MLAs later retracted their withdrawal of support, claiming their signatures were obtained by misrepresentation.
Supreme Court’s Verdict in the Case
- Judicial Review of President’s Proclamation: The Court unanimously held that the President’s proclamation is subject to judicial review on several grounds, including illegality, malafide, and abuse of power.
- Parliamentary Approval Requirement: The verdict mandated Parliamentary approval for imposing President’s rule. Without this approval, the dismissed government would automatically be revived after two months.
- Centre-State Relationship: The ruling emphasized the autonomy of states, stating that greater power at the Centre does not reduce states to mere appendages.
Impact of the Ruling
- Scrutiny of Governor’s Conduct: This was one of the first judgments to scrutinize the Governor’s role, especially in the context of frequent impositions of President’s rule.
- Decrease in President’s Rule Impositions: Research indicates a significant decrease in the frequency of President’s rule post-SR Bommai , from an average of 2.5 times a year (1950-1994) to just over once a year (1995-2021).
Kashmir Reference in the Article 370 Ruling
- Key Question: The central question was whether Article 370 could be abrogated while J&K was under President’s rule, which had been in place since 2018.
- Supreme Court’s Reliance on SR Bommai: The Court used the SR Bommai ruling to validate the President’s actions in J&K, applying the standards set by Justices PB Sawant and Jeevan Reddy for testing the validity of executive orders.
Conclusion
- Influence on Federal Dynamics: The SR Bommai judgment continues to influence the balance of power between the Centre and states, ensuring judicial oversight over central interventions in state governance.
- Relevance in Contemporary Rulings: Its principles, particularly regarding judicial review and the autonomy of states, remain crucial in contemporary constitutional interpretations, as seen in the Article 370 ruling.
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President’s Rule
In news: President’s Rule
Note4Students
From UPSC perspective, the following things are important :
Prelims level: President Rule, Article 356
Mains level: Read the attached story
Central Idea
- Amidst an escalating confrontation, Punjab Governor gave stern warning of invoking Article 356 (President’s Rule) in the state.
Grim Situation in Punjab
- Rampant Drug Abuse: The Governor cites reports from various agencies indicating widespread drug abuse in Punjab, raising significant concerns.
- New Drug Sales Trend: An emerging trend of selling drugs within government-controlled liquor vends is noted by the Governor.
- Ludhiana Liquor Vend Incident: Specific instances like the sealing of 66 liquor vends in Ludhiana by the Narcotics Control Bureau [NCB] and Chandigarh Police highlight the gravity of the issue.
- Disturbing Law and Order Indicators: The Governor references a recent report by the Parliamentary Standing Committee indicating alarming drug exposure or addiction levels, implying a breakdown in law and order.
- Public Response: The Governor underscores villagers’ resorting to street protests and forming their own defence committees against drug-related threats.
Governor’s Discontent
- Unfulfilled Information Requests: The Governor expresses dissatisfaction with CM’s reluctance to provide the requested information, highlighting Article 167’s mandate for the CM to respond to the Governor’s requests.
- Alleged Deliberate Silence: The Governor implies that the Chief Minister’s apparent failure to respond might be a deliberate act of evasion.
About President’s Rule
- Article 356 of the Indian Constitution, commonly known as President’s Rule, empowers the President to impose central rule in a state where the constitutional machinery has broken down.
- While initially intended for extraordinary circumstances, it has often been misused by central governments for political purposes.
Provisions of Article 356:
- Imposition of President’s Rule: Article 356 allows the President to withdraw the executive and legislative powers of a state government when it cannot function in accordance with the Constitution.
- Triggering factors: The President can invoke Article 356 based on a report from the Governor or suo motu if the constitutional machinery has broken down in the state.
- Duration: It can be imposed for six months at a time, with a maximum duration of three years.
- Parliamentary approval: Every six months, Parliament’s approval is required to continue the imposition of the President’s Rule.
Historical Origins
- Inspiration from the Government of India Act, 1935: Article 356 was inspired by Section 93 of this act, which allowed the Governor of a province to assume the powers of the government under certain circumstances.
- Controlled democracy: The provision provided some autonomy to provincial governments while enabling British authorities to exercise ultimate power when necessary.
Political Misuse of Article 356
- Early instances: During Congress’s dominance, Article 356 was used against governments of the Left and regional parties in states. Jawaharlal Nehru’s government utilized it six times until 1959, including to dislodge Kerala’s elected communist government.
- Increasing misuse: In subsequent decades, Article 356 was used frequently against state governments by various central governments, including those led by Indira Gandhi and the Janata Party.
Landmark Judgment: S R Bommai Case
- Landmark Supreme Court ruling: In the 1994 R. Bommai v. Union of India case, the Supreme Court provided detailed guidelines on the use of Article 356.
- Specific instances for imposition: The court stated that the President’s Rule can be invoked in cases of physical breakdown of the government or a ‘hung assembly.’
- Curbing arbitrary use: The judgment emphasized the need to give the state government a chance to prove its majority or instances of violent breakdown before imposing the President’s Rule.
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President’s Rule
Opposition calls for President’s Rule in Manipur
Note4Students
From UPSC perspective, the following things are important :
Prelims level: President Rule
Mains level: Read the attached story
Central Idea
- A political party has called for the dismissal of the state government in Manipur and immediate imposition of President’s Rule to initiate a peace process under a neutral administration.
What is President’s Rule?
- Article 356 of the Indian Constitution, commonly known as President’s Rule, empowers the President to impose central rule in a state where the constitutional machinery has broken down.
- While initially intended for extraordinary circumstances, it has often been misused by central governments for political purposes.
Provisions of Article 356:
- Imposition of President’s Rule: Article 356 allows the President to withdraw the executive and legislative powers of a state government when it cannot function in accordance with the Constitution.
- Triggering factors: The President can invoke Article 356 based on a report from the Governor or suo motu if the constitutional machinery has broken down in the state.
- Duration: It can be imposed for six months at a time, with a maximum duration of three years.
- Parliamentary approval: Every six months, Parliament’s approval is required to continue the imposition of President’s Rule.
Historical Origins
- Inspiration from the Government of India Act, 1935: Article 356 was inspired by Section 93 of this act, which allowed the Governor of a province to assume the powers of the government under certain circumstances.
- Controlled democracy: The provision provided some autonomy to provincial governments while enabling British authorities to exercise ultimate power when necessary.
Political Misuse of Article 356
- Early instances: During Congress dominance, Article 356 was used against governments of the Left and regional parties in states. Jawaharlal Nehru’s government utilized it six times until 1959, including to dislodge Kerala’s elected communist government.
- Increasing misuse: In subsequent decades, Article 356 was used frequently against state governments by various central governments, including those led by Indira Gandhi and the Janata Party.
Landmark Judgment: S R Bommai Case
- Landmark Supreme Court ruling: In the 1994 R. Bommai v. Union of India case, the Supreme Court provided detailed guidelines on the use of Article 356.
- Specific instances for imposition: The court stated that President’s Rule can be invoked in cases of physical breakdown of the government or a ‘hung assembly.’
- Curbing arbitrary use: The judgment emphasized the need to give the state government a chance to prove its majority or instances of violent breakdown before imposing President’s Rule.
Try this PYQ:
Which of the following are not necessarily the consequences of the proclamation of the President’s rule in a State?
- Dissolution of the State Legislative Assembly
- Removal of the Council of Ministers in the State
- Dissolution of the local bodies
Select the correct answer using the code given below:
(a) 1 and 2
(b) 1 and 3
(c) 2 and 3
(d) 1, 2 and 3
Post your answers here.
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President’s Rule
Does India really need State Governors?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Office of the Governor
Mains level: Read the attached story
Central Idea
- The recent termination of a state minister’s appointment by Tamil Nadu Governor R N Ravi has sparked renewed debates on the role and necessity of Governors in Indian states.
- While conflicts between state governments and the Governor’s office are not new, it is important to examine the position of the Governor and its constitutional implications.
Who is a State Governor?
- In India, the position of State Governors is established by the Constitution of India.
- The constitutional provisions regarding State Governors can be found primarily in Articles 153 to 162 of the Indian Constitution.
Here are the key aspects of the constitutional position of State Governors in India:
- Appointment: The Governor of a state is appointed by the President of India. The President acts on the advice of the Council of Ministers headed by the Prime Minister.
- Executive Power: The Governor is the head of the state executive and exercises executive powers on behalf of the President. The Governor is the representative of the President at the state level.
- Constitutional Head: The Governor acts as the constitutional head of the state and performs ceremonial functions such as the opening and closing of the state legislature, giving assent to bills, and issuing ordinances.
- Administrative Role: The Governor plays a crucial role in the administration of the state. The Governor appoints the CM and other members of the Council of Ministers, as well as certain high-ranking state officials.
Powers and Functions
- Legislative Functions: The Governor has a role in the legislative process. The Governor summons and prorogues the state legislature, addresses the legislature at the beginning of its first session after each general election, and gives assent to bills passed by the state legislature.
- Discretionary Powers: The Governor has certain discretionary powers. For example, the Governor can reserve certain bills passed by the state legislature for the consideration of the President. The Governor can also withhold assent to bills under certain circumstances.
- Emergency Powers: In cases of breakdown of constitutional machinery in a state, the Governor can recommend the imposition of President’s Rule, where the state government is temporarily suspended, and the Governor acts as the executive head of the state.
- Link with Central Government: The Governor serves as a vital link between the state government and the central government. The Governor communicates with the President and the central government on various matters related to the state.
Arguments for the Existence of the Governor’s Post
- Preservation of Provincial Autonomy: The Constituent Assembly aimed to maintain the Governor as the constitutional representative of states in post-independence India.
- Need for Centralization and Impartiality: Supporters argue that a certain level of centralized power is essential for a developing nation like India, and the Governor ensures impartiality in governance.
- Continuity and Stability: The Governor’s presence provides stability and continuity in governance, and they play a significant role in administering oaths and delivering inaugural addresses.
Arguments against the Governor’s Post
- Interference and Politicization: Critics claim that Governors often interfere in the functioning of state governments, especially those led by opposing political parties, leading to politicization of the office.
- Lack of Impartiality: Concerns arise about the impartiality of Governors appointed from political backgrounds, potentially influencing their decisions and actions.
- Redundancy and Inefficiency: Some argue that the role of the Governor can be carried out by alternative mechanisms, and the office incurs unnecessary expenditure.
Supreme Court’s Stand and Judicial Review
- Limited Powers and Aid-Advice: The Supreme Court has established that Governors are required to exercise their powers upon the aid and advice of their ministers, except in exceptional circumstances.
- Judicial Oversight: Through landmark cases, the Supreme Court has set limits on gubernatorial powers, ensuring their actions adhere to the Constitution and the law.
Recommendations by Commissions and Committees
- Administrative Reforms Commission (ARC): The ARC, in its report in 1969, emphasized harmonious relations between Governors and state governments, suggesting enhanced cooperation and limited interference.
- Sarkaria Commission (1983): The commission proposed modifications to augment the responsibilities and influence of Governors while emphasizing impartiality and fixed tenures.
- Punchhi Commission (2010): Recommendations included consultation with the Chief Minister during the appointment of Governors and expanding their responsibilities in specific areas.
- Other Proposals: Various recommendations have been made, such as appointing Governors through a collegium, limiting their role to ceremonial duties, or abolishing the post in smaller states or union territories.
Conclusion
- The debate surrounding the role of Governors in Indian states continues to evolve.
- While arguments for the existence of the Governor’s post revolve around preserving provincial autonomy, centralization, and stability, critics highlight concerns of interference, politicization, and redundancy.
- Judicial oversight and recommendations from commissions and committees have aimed to strike a balance between the Governor’s constitutional responsibilities and the need for impartiality.
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President’s Rule
President’s Rule not an option in Manipur: MHA
Note4Students
From UPSC perspective, the following things are important :
Prelims level: President Rule, Article 356
Mains level: NA
Central Idea: Union Home Minister has said that imposition of President’s Rule in Manipur was not an option and the situation was soon returning to normal.
What is President Rule?
- Article 356 of the Indian Constitution, commonly known as President’s Rule, empowers the President to impose central rule in a state where the constitutional machinery has broken down.
- While initially intended for extraordinary circumstances, it has often been misused by central governments for political purposes.
Provisions of Article 356:
- Imposition of President’s Rule: Article 356 allows the President to withdraw the executive and legislative powers of a state government when it cannot function in accordance with the Constitution.
- Triggering factors: The President can invoke Article 356 based on a report from the Governor or suo motu if the constitutional machinery has broken down in the state.
- Duration: It can be imposed for six months at a time, with a maximum duration of three years.
- Parliamentary approval: Every six months, Parliament’s approval is required to continue the imposition of President’s Rule.
Historical Origins
- Inspiration from the Government of India Act, 1935: Article 356 was inspired by Section 93 of this act, which allowed the Governor of a province to assume the powers of the government under certain circumstances.
- Controlled democracy: The provision provided some autonomy to provincial governments while enabling British authorities to exercise ultimate power when necessary.
Political Misuse of Article 356
- Early instances: During Congress dominance, Article 356 was used against governments of the Left and regional parties in states. Jawaharlal Nehru’s government utilized it six times until 1959, including to dislodge Kerala’s elected communist government.
- Increasing misuse: In subsequent decades, Article 356 was used frequently against state governments by various central governments, including those led by Indira Gandhi and the Janata Party.
Landmark Judgment: S R Bommai Case
- Landmark Supreme Court ruling: In the 1994 R. Bommai v. Union of India case, the Supreme Court provided detailed guidelines on the use of Article 356.
- Specific instances for imposition: The court stated that President’s Rule can be invoked in cases of physical breakdown of the government or a ‘hung assembly.’
- Curbing arbitrary use: The judgment emphasized the need to give the state government a chance to prove its majority or instances of violent breakdown before imposing President’s Rule.
Try this PYQ:
Which of the following are not necessarily the consequences of the proclamation of the President’s rule in a State?
- Dissolution of the State Legislative Assembly
- Removal of the Council of Ministers in the State
- Dissolution of the local bodies
Select the correct answer using the code given below:
(a) 1 and 2
(b) 1 and 3
(c) 2 and 3
(d) 1, 2 and 3
Post your answers here.
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President’s Rule
The Tussle Between Chief Ministers and Governors: Preserving the Sanctity of Legislative Processes
Note4Students
From UPSC perspective, the following things are important :
Prelims level: provisions related to Governors and power to assent bills
Mains level: Issues between Chief Ministers and Governors
Central Idea
- Issues have recently surfaced in several states regarding the delay in the passage of Bills, leading to conflicts between Chief Ministers and Governors. This situation poses a challenge for parliamentary democracies, where governments are elected to enact laws that reflect the will of the people. Inability to legislate effectively can potentially result in a breakdown of the democratic system.
Who is Governor?
- Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
- Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
- Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including the National Capital Territory of Delhi.
- Non-local appointees: Few or no governors are local to the state that they are appointed to govern.
The Role of the Governor in the state
- Constitutional Head: The Governor serves as the constitutional head of the state and represents the President at the state level.
- Executive Functions: The Governor appoints the Chief Minister, who is usually the leader of the majority party in the Legislative Assembly. The Governor also appoints other members of the Council of Ministers on the advice of the Chief Minister.
- Legislative Functions: The Governor summons and prorogues sessions of the Legislative Assembly, and can also dissolve the Legislative Assembly if necessary. The Governor addresses the Legislative Assembly at the beginning of each session, highlighting the government’s policies and priorities.
- Assenting to Bills: The Governor plays a crucial role in the legislative process by giving or withholding assent to bills passed by the Legislative Assembly. The Governor can also return a bill with recommendations for reconsideration by the Legislative Assembly.
- Discretionary Powers: The Governor can exercise certain discretionary powers, such as referring a bill to the President if it affects the powers of the High Court or if it involves a matter of public interest. The Governor may also exercise discretion in situations where the Constitution expressly permits independent action.
- Judicial Functions: The Governor appoints the Chief Justice and other judges of the High Court in consultation with the Chief Justice of India and the state’s Chief minister. The Governor also has the power to grant pardons, reprieves, and remissions of punishment.
- Diplomatic Functions: The Governor represents the state in its relations with other states in India and performs ceremonial duties as the representative of the state.
- Emergency Powers: In times of emergency or breakdown of constitutional machinery in the state, the Governor can assume additional powers to maintain law and order and ensure the smooth functioning of the government.
- Interaction with the Central Government: The Governor acts as a link between the state government and the central government. They communicate state-related matters to the President and seek the President’s advice on various issues
Constitutional Provision Regarding Governor
- Article 153: Provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor “Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”.
- Article 154(2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority.
- Article 163: Categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor. except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”
Governor’s Power to Assent the Bill
According to Article 200:
- Assenting to Bills: When a bill is presented to the Governor, they have three options: to give their assent, to withhold their assent, or to return the bill with recommendations for reconsideration.
- Returning the Bill: If the Governor decides to return the bill, they can do so with a message to the Legislative Assembly, requesting them to reconsider the bill wholly or partially. However, this provision applies only to bills that are not Money Bills.
- Timeframe for Reconsideration: The Legislative Assembly has a period of six months to decide whether or not to accept the Governor’s recommendations. If the bill is returned to the Governor and the Legislative Assembly accepts the recommendations, the Governor is obliged to give their assent to the bill.
- Discretionary Referral to the President: The Governor also has the discretion to refer a bill to the President if they believe that the bill, if enacted, would encroach upon the powers of the High Court. In such cases, the procedure for obtaining the President’s assent is outlined in Article 201 of the Constitution
Judicial Review over the Governor’s Autonomy
- Constitutionality of Actions: The judiciary has the authority to review the actions of the Governor and determine whether they are consistent with the provisions of the Constitution. If the Governor acts in a manner that exceeds their constitutional powers or violates constitutional provisions, the judiciary can intervene and declare such actions as unconstitutional.
- Exercise of Discretionary Powers: The Governor’s discretionary powers, as granted by the Constitution, are subject to judicial review. If the Governor’s exercise of discretion is found to be arbitrary, unreasonable, or against constitutional principles, the judiciary can intervene and provide necessary remedies.
- Violation of Fundamental Rights: If the actions or decisions of the Governor infringe upon the fundamental rights of individuals or groups, the judiciary can review such violations and ensure that constitutional rights are protected. The courts can examine whether the Governor’s actions are in accordance with the fundamental rights guaranteed by the Constitution and take appropriate measures to safeguard these rights.
- Compliance with Constitutional Procedures: The judiciary can review whether the Governor has followed the prescribed constitutional procedures in exercising their powers. This includes assessing whether the Governor has properly considered the advice of the Council of Ministers, followed the constitutional provisions regarding assenting to bills, or adhered to procedural requirements in making appointments or taking other actions.
- Limits on Discretion: Judicial review ensures that the Governor’s discretion is not absolute and subject to constitutional limitations. If the Governor’s actions are found to be beyond their constitutional powers, the judiciary can nullify such actions and provide appropriate remedies.
- Review of Delayed Actions: If the Governor unduly delays taking action on a bill or any other matter, the judiciary can review such delays to ensure that they are not in violation of constitutional principles. If the delay is deemed unreasonable or unjustified, the courts can intervene and direct the Governor to fulfill their constitutional obligations within a reasonable time frame
Conclusion
- The issues between Chief Ministers and Governors regarding the passing of Bills highlight the need to preserve the integrity of parliamentary democracy. The Governor’s role is to act on the advice of the Council of Ministers, and their discretion is limited. Judicial review ensures constitutional adherence and protects democratic principles.
Interesting to read
| Constituent Assembly Debate and Ideal Conduct of Governor |
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President’s Rule
Private: Supreme Court’s Maharashtra Assembly Verdict
President’s Rule
What is Article 356 of Indian Constitution?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Presidents Rule
Mains level: Read the attached story
Sitting PM recalled that governments at the Centre had dismissed 90 elected state governments by “misusing” Article 356 of the Constitution.
What is Article 356?
- Article 356 of the Indian Constitution contains provisions for the imposition of “President’s Rule” in a state, removing an elected government.
- While the Constitution intended Article 356 to be used only under extraordinary circumstances, central governments repeatedly used the provision to settle political scores.
What does it say?
- Article 356 empowers the President to withdraw to the Union the executive and legislative powers of any state.
- She/he has to be 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.
- Whether the constitutional machinery has broken down may be determined by the President at any time, either upon receipt of a report from the Governor, or suo motu.
Duration of Presidents Rule
- According to the provisions of Article 356, President’s Rule in a state can be imposed for six months at a time for a maximum duration of three years.
- Every six months, Parliamentary approval to impose President’s Rule will be required again.
- However, in the past, President’s Rule has been extended for significantly longer periods under specific circumstances.
- For instance, Punjab was under President’s Rule from 1987-1992 due to the growing militancy.
What are the origins of Article 356?
- Article 356 was inspired by Section 93 of the Government of India Act, 1935.
- This provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance GOI Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion.
- The Governor, however, could not encroach upon the powers of the high court.
- For the British, this provision allowed for a ‘controlled democracy’ – while providing some autonomy to provincial governments, Section 93 allowed the British authorities to exercise ultimate power when they deemed necessary.
How was the provision used as a political weapon in independent India?
- During the decades of Congress’s dominance at the Centre, Article 356 was used against governments of the Left and regional parties in the states.
- Until 1959, Jawaharlal Nehru’s government had used the article six times, including to dislodge the first-ever elected communist government in the world, in Kerala in 1959.
- In the 1960s, it was used 11 times. After Indira came to power in 1966, Article 356 was used seven times between 1967 and 1969 alone.
- The 1970s were more politically turbulent. Between 1970 and 1974, President’s Rule was imposed 19 times.
- Post-emergency, the Janata Party government used it in 1977 to summarily dismiss nine Congress state governments.
- When Indira returned to power in 1980, her government too imposed President’s Rule in nine states.
- In 1992-93, PM Narasimha Rao dismissed three governments in the wake of the demolition of Babri Masjid, besides Kalyan Singh’s government in UP.
How was this political misuse of Article 356 curbed?
Ans. S R Bommai Judgment, 1989
- In its judgment in the landmark R. Bommai v. Union of India case, the Supreme Court discussed the provisions of Article 356 at length.
- A nine-judge Bench in its decision in 1994 noted the specific instances when President’s Rule can be imposed and when it cannot.
- The court held that Article 356 can be invoked in situations of the physical breakdown of the government or when there is a ‘hung assembly’.
- But that it cannot be used without giving the state government a chance to either prove its majority in the House or without instances of a violent breakdown of the constitutional machinery.
- Since the judgment, the arbitrary use of Article 356 has been largely controlled.
Try this PYQ:
Which of the following are not necessarily the consequences of the proclamation of the President’s rule in a State?
- Dissolution of the State Legislative Assembly
- Removal of the Council of Ministers in the State
- Dissolution of the local bodies
Select the correct answer using the code given below:
(a) 1 and 2
(b) 1 and 3
(c) 2 and 3
(d) 1, 2 and 3
Post your answers here.
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President’s Rule
First of its kind: Governor skipping the text of customary address to the assembly
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Office of Governor in the state and related provisions
Mains level: Issues with role of Governor in the state, The case of Governor's activism
Context
- Governor of Tamil Nadu left the assembly session of house while chief minister was point out that governor skip the certain portion of the speech which he was suppose to read. This has again raised the questions over powers and functions of governor.
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History about powers of governor and assembly address
- Non-interference of Governors under British: A good governor must stay above politics and manifestly be seen as impartial and fair. In 1937, when the Congress won elections in seven provinces, it took office on the condition that the British governors would not interfere in the functioning of its ministries and refrain from exercising “discretion and special powers”.
- Special powers under the constitution: However, after Independence, India conferred the same special powers on governors.
- Yogender Singh Handa v. State of Rajasthan (1967): In 1967, Rajasthan Governor Sampuranand skip a part the speech. In Yogender Singh Handa v. State of Rajasthan (1967), the Rajasthan High Court held that some portion read by the governor was good enough to deem the whole address as read.
- Governor Padmaja Naidu case: On February 8, 1965, when her request for “silence, silence, permit me to address” was ignored, West Bengal Governor Padmaja Naidu left the assembly without delivering the ceremonial address. The Speaker took the chair and announced that the governor had been pleased to make her speech and lay a copy of her speech on the table of the House.
Powers and functions of the governor
- Integral part of assembly: The governor is an integral part of the legislative assembly. He calls its sessions and he dissolves the House.
- Right to address first session of the house: Under Article 176(2(b), he has the right to address the first session of the House. This address is an integral part of constitutional symbolism and has huge significance.
- Powers of cabinet, not Governor’s: The Constitution gives no discretion to governors in the matter of convening the session of the assembly. Parliamentary democracy being the basic structure of our Constitution, this is the prerogative of the Cabinet though Article 174 does say that the governor from time to time summons the assembly to meet at such time and place “he thinks fit”.
- Nabam Rebia (2016) case: Governors have no business to question the purpose of convening the sessions of the House. A five-judge bench of the Supreme Court in Nabam Rebia (2016) had observed that the Governor of Arunachal Pradesh, J P Rajkhowa, who advanced the session of the assembly without the advice of the chief minister, had exceeded his jurisdiction as he had no discretion in convening the assembly session.
Legality of governor skipping the mandatory speech to assembly
- Governor cannot decline to give a speech: Justice B N Banerjee of the Calcutta High Court in Andul Gafoor Habibullah v. Speaker, West Bengal Assembly (1966) held that the governor cannot decline to deliver his address and refuse to fulfil his constitutional duty.
- Failure to address is irregularity not legality: The address under Article 176 is mandatory. However, the HC held that when the governor fails to deliver his address under Article 176 and walks out of the House after laying down the address on the table of the House, this is mere irregularity, not illegality.
- Non-judiciable in court: It cannot be questioned under Article 212, wherein the validity of the House proceedings cannot be challenged on the ground of mere irregularity in the procedure. The petitioner’s claim, in this case, was that since the House did not start its proceedings with the customary address by the governor, it has vitiated the proceedings of the House.
Implications: If governor refuses/fails to deliver assembly address?
- Possibility of constitutional crisis: Governors editing/deleting the speech may indeed create a constitutional crisis. The chief minister may refuse to defend the address in his response at the end of the debate on the governor’s address and with the chief minister commanding a majority, the House may reject the resolution on the governor’s speech.
- CM may need to resign: When the governor’s/president’s address faces such a defeat, it is considered a no-confidence motion and the chief minister or the prime minister as the case may be, needs to resign.
- Resignation over irregularity: Such a resignation for something that the government did not include in the ceremonial address but the governor had said on its own would not only be grossly unjust and unethical but absolutely undemocratic.
- Past precedence of resignation: Chief Minister Gurnam Singh of Punjab in 1967 had resigned when the governor’s address was defeated on the floor of the House. UP CM C B Gupta too had to resign in similar circumstances when a resolution thanking the governor was defeated in the UP assembly. Thus, the governor has no discretion in editing the address.
Conclusion
- Governor is neither a decorative emblem nor a glorified cipher. His powers are limited but he has an important constitutional role to play in the governance of the state and in strengthening federalism. He is the head of the state and all chief ministers, including the Tamil Nadu chief minister, must remember it. All governors too must remain true to their oath of preserving, protecting and defending the Constitution.
Mains Question
Q. What are the functions of the Governor with respect to addressing the assembly of the state? What may be the implications of the Governor skipping the address to assembly?
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President’s Rule
Constituent Assembly Debate and Ideal Conduct of Governor
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Constitutional provisions
Mains level: Issues with the office of the Governor
Context
- In recent years, there has been an erosion of constitutional provisions, constitutional morality, and constitutional ethos being witnessed among various constitutional bodies. The conduct of the Governors of some States has made a mockery of the Constitution and its limitations.
Constituent assembly debates about the Governor
- Exercise of Power according to constitution: In 1949, Prof. K.T. Shah debating Article 130 (now Article 154) said: “the Constitution should make it imperative upon the Governor to use its power in accordance with the Constitution and the Law, that is to say, on the advice of his Ministers as provided for in the subsequent clauses and in other parts of the Constitution.”
- Appointment of governor by president: It was hotly debated whether the Governor should be appointed by the President of India or should be elected. Fearing that this would create a parallel State leadership, the Assembly instead adopted appointment by the President.
- Good governor and Bad Governor: G. Kher said: “a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”
- Friendly intervention of the Governor: K. Sen said, “The question is whether by interfering, the Governor would be upholding the democratic idea or subverting it. It would really be a surrender of democracy. We have decided that the Governor should be a constitutional head. He would be the person really to lubricate the machinery and to see to it that all the wheels are going well by reason not of his interference, but his friendly intervention.”
- Aid and advice of cabinet: R. Ambedkar said, according to the principles of the New Constitution, Governor is required to follow the advice of his ministry in all matters. Therefore, the real issue before the House is not nomination or election, but what powers you propose to give to your Governor.
- Nomination of governor and not election: If the Governor is a purely constitutional Governor with no more powers than what we contemplate expressly to give him in the Act. I personally do not see any very fundamental objection to the principle of nomination.”
Constitutional Provision Regarding Governor
- Article 153: Provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor “Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”.
- Article 154(2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
- Article 163: Categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor… except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”.
How governor ideally supposed to conduct his duty?
- Shamsher Singh vs State of Punjab: The Supreme Court, in Shamsher Singh vs State of Punjab, decided on this issue in 1974: The Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution. These are called Rules of Business.
- Satisfaction of governor is satisfaction of cabinet: The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360. The satisfaction required by the Constitution …. is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.
- Use of discretion in harmony with council of ministers: The Court went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power but, in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.
- No parallel administration by governor: The Constitution does not aim at providing a parallel administration. The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.
Conclusion
- Governor’s role is to assist the Chief minister of state and not creating the trouble for Chief Minister. Governor should not act in a manner that undermines the dignity of constitutional post of Governor. Governor must follow the constitutional morality while discharging his duty.
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President’s Rule
Consulting the CM Over the Appointment of The Governor
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Office of governor, appointment and associated facts.
Mains level: Issues with the office of the governor
Context
- With the rise in instances of tension, and even standoffs, between State governments and Governors, there is once again a debate on the role of the Raj Bhavan and conduct of Governors, the relation of Governors with the Centre and State government, and whether Chief Ministers should have a say in the appointment of Governors in their respective States.
Role and responsibilities of governor
- Executive Powers:
- Nominal Head of the government: These powers are exercised by the council of ministers in the name of Governor. Hence Governor is only nominal head and council of ministers is the real executive.
- Head of the state: He is the constitutional head of the state who appoints the leader of majority party as chief minister. He can seek any information from the chief minister. He appoints the advocate general, chairman and members of the respective state public commission.
- Can recommend the emergency: He can recommend the imposition of constitutional emergency in a state to the President. During the period of President’s rule in a state, the governor enjoys extensive executive powers as an agent of the President.
- Legislative Powers:
- He is part of state legislative.
- No bill can become a law until the governor signs it.
- He can withhold a bill and send it to the President for consideration.
- He can dissolve the State Assembly before the expiry of its term on the advice of the Chief Minister or as directed by the President.
- He causes the annual Budget to be presented in the Vidhan Sabha.
- Judicial Powers:
- The governor appoints the district judges.
- He is consulted in the appointment of the judges of the High Court by the President
- He can, pardon, remit and commute the sentence of a person convicted by a state court.
- Financial Powers:
- He causes the annual budget to be laid before the Vidhan Sabha;
- No money bill can be introduced without his prior approval.
- Discretionary Powers:
- Selection of CM: If no party gets an absolute majority, the Governor can use his discretion in the selection of the Chief Minister;
- Real executive of state: During an emergency he can override the advice of the council of ministers. At such times, he acts as an agent of the President and becomes the real ruler of the state;
- Report to president: He uses his direction in submitting a report to the President regarding the affairs of the state; and
- Withhold the assent: He can withhold his assent to a bill and send it to the President for his approval.
Sarkaria commission’s recommendation on the role of governor
- Chief minister should be involved in appointment: The powers of the President in the matter of selection and appointment of Governors should not be diluted. However, the Governor of a State should be appointed by the President only after consultation with the Chief Minister of that State. Normally the five-year term should be adhered to and removal or transfer should be by following a similar procedure as for appointment i.e., after consultation with the Chief Minister of the concerned State.
- Governor should convey assent or dissent in time: There should be a time-limit say a period of six months within which the Governor should take a decision whether to grant assent or to reserve a Bill for consideration of the President. If the Bill is reserved for consideration of the President, there should be a time-limit, say of three months, within which the President should take a decision whether to accord his assent or to direct the Governor to return it to the State Legislature or to seek the opinion of the Supreme Court regarding the constitutionality of the Act under article 143.
Additional suggestions by NCRWC
- Committee to appoint the governor: National commission to review the Working of the constitution (NCRWC) recommendations were similar to that of Sarkaria commission. NCRWC has suggested that a committee consisting of the Prime Minister, Home Minister, Speaker of the Lok Sabha, and the Chief Minister of the state in question shall nominate the Governor.
Know the basics: Present constitutional arrangement
- The Governor of a State is appointed by the President for a term of five years and holds office during his pleasure.
- Only Indian citizens above 35 years of age are eligible for appointment to this office.
What is the expert’s opinion?
- Vice-president should be involved: Total composition of the committee is of the ruling party at the Centre. It should be the Vice-President, the Speaker of the Lok Sabha, the Leader of the Opposition, and maybe the Chief Minister of the State.
- Governor should be above the chief minister: Getting the Chief Minister involved in the process of selection is not right. The Governor cannot be made to feel that the Chief Minister was one of those responsible for his selection; the Governor has to be above the Chief Minister, be independent, be able to function in a nonpartisan manner, and not be beholden to the ruling party or to the Chief Minister.
- Minimum qualification to be the governor: we have no criteria, no minimum qualifications laid out for a Governor. These are often retirement perks or rewards for unstinting loyalty to a particular party. Governors cannot be called before a court of law. These are things which have to be kept in mind.
- A guide to chief minister: The Governor is supposed to be a friend, philosopher and guide, helping from the back, sorting out issues and resolving disputes, even between political parties. The Governor has to at times advise the Centre on what is happening and what needs to be done. That brings the Centre and the State together.
Conclusion
- Governors’ role is always in contestation when Centre and state have different government. Governor is a political appointee for political purpose. However, governor should respect the constitutional post he holds and perform his duties and responsibilities without any biases and affiliations.
Mains Question
Q. What actions of governors undermines his constitutional position? What are the recommendations of Sarkaria commissions regarding the governor’s office?
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President’s Rule
The case of “Governor’s pleasure”
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Constitutional provisions related to the Governor
Mains level: Issues related to office of governor
Context
- A tweet put out recently by the office of the Kerala Governor evoked nationwide attention for all the wrong reasons. It said: “the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”. the Governor sent a letter to the Kerala CM asking him to act against the State Finance Minister, who, according to the Governor, had “ceased to enjoy” the Governor’s “pleasure”. The Chief Minister declined to do so.
Who is a Governor?
- Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
- Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
- Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including National Capital Territory of Delhi.
- Non-local appointees: Few or no governors are local to the state that they are appointed to govern.
Important Constitutional Provisions related to Governor
- Article 153: It requires a governor to be appointed for every state in India.
- Article 154: Vests the executive power of the State in the Governor
- Article 155: Appointment of the Governor
- Article 156: Term of Office of Governor
- Article 157: Qualifications for appointment as Governor
Executive functions of Governor include
- An important function of the Governor is to appoint the Chief Minister of the State.
- Other ministers are also appointed by the Governor on the advice of the Chief Minister.
- The ministers including the Chief Minister hold office during the pleasure of the Governor.
- The Governor has the constitutional right to know the decisions of the Council of Ministers relating to the administrative affairs of the State and the proposals for legislation.
What are the contradictory issues with Governor’s office?
- Bound by the principle: The function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa. This is a foundational theory of India’s constitutional democracy.
- Contradictory Aid and advise and Discretion: Article 163(1) says that the Council of Ministers must aid and advise the Governor. However, according to Article 163(2), the Governor can act in his discretion in certain matters as permitted by the Constitution
- Discretion still bounds by cabinet decision: Governor is generally bound by the Cabinet decision except when he has a legitimate right to invoke his discretion, say, for example, in deciding on sanction to prosecute a cabinet minister or in his decisions as Administrator of a Union Territory, as per the orders of the President of India, etc.
- Apparatus of interaction: There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion. The management of differences has traditionally been guided by respect for each other’s boundaries.
Issues of “Pleasure” of Governor
- Constitution Bench judgment of Supreme court in Shamsher Singh vs State of Punjab (1974) case:
- In Shamsher Singh, for the purpose of comparison, the Supreme Court extracted Dr. B.R. Ambedkar’s introductory statement made on November 4, 1948, in the Constituent Assembly, which said: “The President of the United States is not bound to accept any advice tendered to him by any of his secretaries. The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so, so long as his Ministers command a majority in Parliament”.
- The same principles apply to the Governors as well, since the Union Minister also holds the office “during the pleasure of the President” as in Article 75(2) of the Constitution.
- “Withdrawal of pleasure”, without advice from the Council of Ministers, as indicated by Raj Bhavan is a misconception.
- Historical background of Article 264:
- The draft Constitution, prepared by the Constitutional Adviser in October 1947, contained Article 126, according to which, “Governor’s Ministers shall be chosen and summoned by (the Governor) and shall hold office during his pleasure”.
- This Article, which was made part of the draft of the erstwhile Article 144, was discussed at length in the Constituent Assembly.
- The general discretion with the Governor was taken away, and the Cabinet was given the authority to rule. Amendment to the draft Article 144 moved by B.R. Ambedkar resulted in the present constitutional scheme of Articles 163 and 164.
- According to the Scholar Subhash C. Kashyap:
- The words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority.
- the moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it.
Conclusion
- During the deliberations in Constituent Assembly Debates,1949, H.V. Kamath asked if there was any guarantee against abuse of power by the Governor. The immediate reaction by P.S. Deshmukh, another prominent member was: “the guarantee is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor”
Mains Question
Q. What is the role of Rajbhavans in the state government’s day to day business. Analyze the constitutional mandate of the governor’s pleasure and accountability of ministers.
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President’s Rule
What is Article 355 of Indian Constitution?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 355
Mains level: Aggrevating Law and Order situtations in states
Considering the law and order situation in West Bengal, some politicians demanded the invoking of Article 355 to ensure the State is governed as per the provisions of the Constitution.
What is Article 355?
- It states that-
“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”
Cases for its invocation
- This article thus comes handy when there are communal violence incidents. Over the period, this article has gained a different texture.
- We know that the “public order” and “police” are state subject and states have exclusive power to legislate on these matters.
- These subjects were entrusted to states because states would be in better position to handle any law and order problem.
- Management of Police by states was also seen as administratively convenient and efficient.
- However, there might be some circumstances where states are unable to maintain public order and protect people.
- In such situation, centre can invoke article 355 and take measures such as taking law and order of state under its own hand, deployment of military etc.
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President’s Rule
Confrontation between the Governors and the State governments
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Discretionary power of Governor
Mains level: Paper 2- Governor-Government conflict
Context
Recent media reports about the confrontation between the Governors and the State governments, in Maharashtra and Kerala, have turned the spotlight on the rather delicate relationship between the constitutional head of the State and the elected government.
Recent incidents of confrontation
- In Maharashtra, the Governor refused to accept the date of election of the Speaker recommended by the State government.
- The Constitution has not assigned any role to the Governor in the election of the Speaker under Article 178, which is exclusively the job of the House.
- The Governor’s refusal to accept the date of election of the Speaker goes against the principles of constitutional government.
- In Kerala, the State Governor having reappointed the Vice Chancellor of Kannur University in accordance with the law, made an allegation that he was under pressure from the Government to reappoint the Vice Chancellor.
- In fact, he or she can accept suggestions from any person including the Leader of the Opposition in the Assembly.
- However, the Governor as Chancellor is not required to act on the advice of the Council of Ministers in the matter of appointment of Vice Chancellor and others in the university.
- He can act absolutely independently.
- Non-acceptance of the advice of the Council of Ministers too has been witnessed in Rajasthan as well as Maharashtra again.
- The Kerala High Court has clarified this legal point in Gopalakrishnan vs Chancellor, University of Kerala.
What explains the confrontational relationship between Governor and State Government?
- Historical background: It has something to do with the whole idea of the office of the Governor and its past history.
- In the colonial era, the Governor was the absolute ruler of the province.
- While making the Constitution, there were divergent views on the powers to be given to the Governor in the Constituent Assembly.
- There were members in the Assembly who wanted the Governor to be as powerful as the colonial-era Governors.
- Discretionary powers: Though B.R. Ambedkar was clear that the Governor should only be a constitutional head and the executive power should vest entirely in the elected government.
- He promoted the idea of vesting certain discretionary powers in the Governor.
- Why discretionary powers? In this respect he was guided by the thinking that the State governments are in subordination to the Union government and, therefore, the Governor should be given discretionary powers to ensure that they act so.
- So, ultimately, the Governor is given certain discretionary powers prescribed by or under the Constitution unlike the President of India who has not been given any such powers.
- Vagueness about actual powers: Further, Article 163 became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (H.V. Kamath).
- This exact reproduction of the provision in the Act of 1935 has, to a great extent, introduced a vagueness about the actual powers of the Governor vis-à-vis the elected government.
- This vagueness was corrected only with the Supreme Court of India stating the law in unambiguous terms in Shamsher Singh (1974).
- From Shamsher Singh to Nabam Rebia (2016) the Supreme Court declared that the Governor can, in the exercise of executive power of the state, act only on the aid and advice of the Council of Ministers “…save in a few well-known exceptional situations”.
Consider the question “The relationship between the Governor and Chief Minister has, even at the best of times, not been absolutely simple and tension free. What are the factors responsible for confrontation? Suggest the way forward.”
Conclusion
The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government.
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President’s Rule
President’s Rule in Puducherry
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Puducherry, President's Rule
Mains level: Presidents' Rule
The Union Cabinet has approved a proposal by the Home Ministry to dissolve the Puducherry Assembly and impose President’s Rule in the Union Territory.
Try this question from CSP 2017:
Q.Which of the following is not necessarily the consequences of the proclamation of the President’s Rule in a State?
- Dissolution of the State Legislative Assembly
- Removal of the Council of Ministers in the State
- Dissolution of the local bodies
Select the correct answer using the code given below
(a) 1 & 2 only
(b) 1 & 3 only
(c) 2 & 3 only
(d) 1, 2 & 3
What is President’s Rule?
- President’s rule is the suspension of state government and imposition of direct central government rule in a state.
- This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.
- Under Article 356, this move can be taken “(1) If the President, on receipt of the 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…”
How long President’s Rule can last?
- A proclamation of President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly and stakes his claim to form a government.
- The revocation does not need the approval of Parliament.
- Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.
- This six-month time-frame can be extended in phases, up to three years.
Conditions for Prez Rule
- Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
- Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
- Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
- Where a constitutional direction of the Central government is disregarded by the state government.
- Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
- Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.
Notable judgements: The S.R. Bommai Case
Bommai v. Union of India (1994) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues.
- The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed the President’s rule to be imposed over state governments.
- Article 356 (1) has been deliberately drafted in a narrow language by the Founding Fathers so that political parties in the Centre does not misuse it to subvert federalism, it had noted.
- The President has to be convinced of or should 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 court had stated that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review”.
What was its verdict?
- The judgment had explained that in a multi-party political system, chances are high that the political parties in the Centre and the State concerned may not be the same.
- Article 356 cannot be used for the purpose of political one-upmanship by the Centre.
- Hence there is a need to confine the exercise of power under Article 356[1] strictly to the situation mentioned therein which is a condition precedent to the said exercise,” the court had said.
Fouling factors
The imposition of President’s Rule in a state would be improper under the following situations:
- Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
- Where the governor recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
- Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
- Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
- Where the power is used to sort out intra-party problems of the ruling party.
Back2Basics: Puducherry
- Puducherry is a union territory formed out of four territories of former French India, namely Pondichéry (Pondicherry; now Puducherry), Karikal (Karaikal), Mahé and Yanaon (Yanam), excluding Chandannagar.
- It is named after the largest district, Puducherry.
- The areas of Puducherry district and Karaikal district are bound by the state of Tamil Nadu, while Yanam district and Mahé district are enclosed by the states of Andhra Pradesh and Kerala, respectively.
- It is entitled by a special constitutional amendment act of 1962 to have an elected legislative assembly and a cabinet of ministers, thereby conveying partial statehood similar to the UT of Delhi.
- It is administered by a Lieutenant Governor.
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President’s Rule
Possibility of judicial use or misuse of Article 356
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 356
Mains level: Paper 2- Misuse of article 356
Article 356 and the word ‘otherwise’ in it has led to the recent Andhra Pradesh High Court order. The order raises several questions. The article deal with this issue.
Controversial High Court order
- Recently the Andhra Pradesh High Court directed the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’.
- The order opens up the possibility of use or even misuse of Article 356 by the judiciary.
- The Supreme Court of India has stayed the order.
- However, we need to go deeper into this observation and look at the controversial provision of Article 356 due to which the High Court could make such an observation.
Historical background of the article
- Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
- Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it.
- The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
- 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.
- After several revisions, provision became Article 278 (now Article 356).
The issue with the word ‘otherwise’
- H.V. Kamath criticised the word ‘otherwise’ and said only god knows what ‘otherwise’ means.
- As the Governor had been made a nominee of the Centre by this time, he asked why the President could not have confidence in his own nominees.
- ‘Otherwise’ can include anything including a presidential dream of breakdown of constitutional machinery in a state.
- The Andhra Pradesh High Court could pass such an order due to this very term ‘otherwise’.
- This word negates the ideals of constitutionalism by giving unlimited powers to the Centre, also allowed the High Court to overstepped the line.
- But this is not the first instance of judicial overreach on this issue.
- On August 13, 1997, a Patna High Court had observed that the High Court could also report to the President about the breakdown of constitutional machinery in the State.
Repeated misuse of Article 356
- In the very first invocation of Article 356 in 1951, 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.
Consider the question “Examine the contest in which the word ‘otherwise’ in Article 356 leads to judiciary exercising its powers. What are the concerns in such case?”
Conclusion
Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.
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President’s Rule
Andhra Pradesh High Court and the CM Row
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Art. 356
Mains level: Presidents' Rule
The Supreme Court has stayed an Andhra Pradesh High Court order intending to embark on a judicial enquiry into whether there is a constitutional breakdown in the State machinery, requiring a declaration of President’s rule.
A backfire from the AP High Court
- Andhra Pradesh CM had earlier sparked controversy by writing to the CJI complaining about a Supreme Court judge for allegedly influencing posting of cases in the State High Court.
- The alleged Judge is slated to be the next Chief Justice of India, and some judges of the AP High Court have opened sharp criticism over AP CM’s move.
What did the Supreme Court say?
- The apex court found the enquiry highly disturbing. Hence it decided to stay the order.
- Solicitor General Tushar Mehta asked why the High Court “should go into whether there is a constitutional breakdown in the State”.
- The Solicitor General of the state government argued that it was not up to the High Court to enquire and recommend President’s rule in a State.
Citations for the President’s Rule in a State
- President’s rule is the suspension of state government and imposition of direct central government rule in a state.
- It is Article 356 that deals with the failure of constitutional machinery in a State.
- This power to impose President’s rule exclusively vests in the Central Executive.
- Under Article 356, this move can be taken- if the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen…..
- The power in this regard, like sending a report either to the President of India or to the Governor of the concerned State or to record a finding in that regard, cannot be exercised by the judiciary.
How did the AP govt respond?
- The AP govt said that the High Court’s observation violated the Basic Structure doctrine of the Constitution.
- Under the constitutional framework, it is not for the courts to decide as to whether there is a constitutional breakdown in a State.
- The said power has been specifically conferred upon a different constitutional authority – and rightly so.
- It is needless to mention that the constitutional courts do not have any judicially discoverable and manageable standards to determine if there has been a constitutional breakdown,” the petition contended.
Back2Basics:
President’s Rule
- President’s rule is the suspension of state government and imposition of direct central government rule in a state.
How it is imposed?
- President’s Rule implies the suspension of a state government and the imposition of direct rule of the Centre.
- This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.
- Under Article 356, this move can be taken “(1) If the President, on receipt of the 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…”
How long President’s Rule can last
- A proclamation of President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly, and stakes his claim to form a government.
- The revocation does not need the approval of Parliament.
- Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.
- This six-month time-frame can be extended in phases, up to three years.
The S.R. Bommai Case
- R. Bommai v. Union of India (1994) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues.
- The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President’s rule to be imposed over state governments.
- Article 356 (1) has been deliberately drafted in a narrow language by the Founding Fathers so that political parties in the Centre does not misuse it to subvert federalism, it had noted.
- The expression used in the Article is ‘if the President is satisfied”, the court had observed.
- In other words, the President has to be convinced of or should 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 court had stated that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review”.
What it directed?
- The judgment had explained that in a multi-party political system, chances are high that the political parties in the Centre and the State concerned may not be the same.
- Article 356 cannot be used for the purpose of political one-upmanship by the Centre.
- Hence there is a need to confine the exercise of power under Article 356[1] strictly to the situation mentioned therein which is a condition precedent to the said exercise,” the court had said.
Conditions for Prez Rule
- Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
- Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
- Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
- Where a constitutional direction of the Central government is disregarded by the state government.
- Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
- Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.
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President’s Rule
Issues related to the Office of Governor
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Constitutional provisions related to the Governor
Mains level: Paper 2- Misuse of discretionary power by the Governor
The article deals with the role of Governor in the state and issue of misuse of discretionary power vested in him.
Constitutional provision related to Governor
- Various Raj Bhavans have become embroiled in controversies over the decade.
- This is partly because the Constitution of India does allow a certain discretion to the Governor.
- And a discretion invariably does get abused.
- The framers of the Constitution had rejected an elected Governor because they were unambiguously clear that political power would only be vested with elected executives.
- Yet, they were not inclined to put in a formal Instrument of Instructions for the Governors and were content to believe that political decencies and correctness would be observed both by the Governor and the Chief Minister.
As the distinguished constitutional expert, Nani A. Palkhivala explained it “the Constitution intended that the Governor should be the instrument to maintain the fundamental equilibrium of the people of the State and to ensure that the mandates of the Constitution are respected in the State”.
Misuse of ‘discretion’ by Governors
- As an appointee of the Union Government, the Governors have been prone to act on the instructions by ruling party at the Centre.
- Inevitably the “discretion” in choosing a Chief Minister, or requiring a Chief Minister to prove his/her majority, or dismissing a Chief Minister, dissolving the legislature, recommending President’s Rule — came to be tainted with partisan political considerations.
- More often than not, the governor’s discretion was abused, sometimes absurdly, even whimsically.
- In the S.R. Bommai case, the Supreme Court did try through its judgment to prevent the misuse of power.
Conclusion
The guidelines given in the S.R. Bommai case should be adhered to by the Governor and should avoid conflict with the elected governments in the States.
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President’s Rule
Issues with nominated CM’s election
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Discretionary powers of Governor
Mains level: Read the attached story
- Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
- His current term in office approaches its end with a looming constitutional crisis.
The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.
CM without Election
- Maha CM took oath in accordance with Article 164(4).
- The article states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
- It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.
Governors dilemma
- A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
- But with the pandemic raging, a by-election cannot be held.
- The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
- If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
- CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.
What does the Judiciary have to say?
- In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
- Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
- The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.
Testing the nomination route
- The nomination route for non-member Ministers is less common — but not unconstitutional.
- In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
- Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
- Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
- Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
- Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.
The role of the Governor
- It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
- However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
- Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.
A new issue for debate
- It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
- Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.
The question of discretion
- What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
- In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria and held that the Governor cannot use his discretion in nominating members to the Council.
- He has to go by the aid and advice of the Council of Ministers.
- Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.
Case in Maharashtra
- It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
- However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
- Thus, the legislative power of the Assembly can be inferred from this provision.
Also read:
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The Case that changed the fate of President’s Rule
The indiscriminate use of President’s rule to thwart away the state governments who did not meet the ideology of Union led to the landmark verdict in the S.R. Bommai vs Union Of India, 1994, which curtailed the misuse of Article 356.
Article 356, what?
Under Article 356, the President can dismiss a State Government or dissolve a State Assembly or keep it under suspended animation in the event of a failure of the constitutional machinery in that State.
Lets know the background of the case, shall we?
In the 1970s & 1980s, it almost became common practice for the central govt. to dismiss state govts led by opposition parties.
- The Indira Gandhi regime and post-emergency Janata Party were noted for this practice.
- Indira Gandhi’s government between 1966-1977 is known to have imposed President’ rule in 39 times
(not states). - In 1989, Karnataka CM S.R. Bommai was denied an opportunity to test his majority in the Assembly by the Governor and his govt. was dismissed.
What do the Constitutional Experts have to say on Art. 356?
Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity.
- Dr. B R Ambedkar had envisaged that Art. 356 shall remain the dead letter in the Indian constitution.
- The Sarkaria Commission on central-state relations has recommended that Article 356 must be used very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state.
What was the S.R. Bommai case?
S.R. Bommai vs Union of India, delivered in March 1994, had sharply limited the constitutional power vested in the Central Government to dismiss a State government.
SC established strict guidelines for imposing President’s rule. This case laid down the conditions under which State govts may be dismissed, and mechanisms for that process.
In terms of the legality of the imposition of President’s Rule in States under Article 356, the SC in this case overruled its own precedent in the case of State of Rajasthan v Union of India 1977 case.
Let’s briefly understand the State of Rajasthan v Union of India 1977 case
- SC held that the power of the President to impose President’s Rule is not above and beyond judicial review entirely.
- The court might insist on substantial evidence in support of the Centre’s charges against a state if the latter accuses the Centre of acting mala fide.
The Court in the Bommai case, narrowed down the circumstances and the manner in which such powers could be exercised.
What are conditions for the valid exercise Article 356?
There was a shift in constitutional jurisprudence as the principle of federalism was part of the basic structure of the Constitution, and this principle could only be deviated from in exceptional and extraordinary circumstances, i.e. where constitutional rule was not possible in the State.
- The majority enjoyed by the Council of Ministers(CoM) in the state shall be tested on the floor of the house and not subjectively decided by the Governor.
- Center shall give a warning and a time-period of 1 week to the concerned state.
- Courts cannot question the advice tendered by the CoM to the President, but court can scrutinizethe material basis of the satisfaction of President.
- Until the proclamation is approved by the Parliament, President shall not take any irreversibleaction, i.e. he should not dissolution of assembly.
- Courts have the power to reverse the actions of President, if the Art. 356 is used inappropriately.
- Art. 356 shall be used sparingly, otherwise it will destroy the constitutional balance between the Center & States.
Published with inputs from Pushpendra | Image: Frontline
In case of completion of 3 years of President rule if the situation has not yet improved in the state and Govt wishes to extend the president rule. After a gap of how many days it can again apply president rule.