 The
proud boast of Indians is that the democratic constitution bequeathed to the nation in
1950 has successfully endured for 48 years. The achievement, however, becomes slightly
less appealing when the intentions of the founding fathers are matched with the actual
operation of the Constitution. When the provision of emergency powers to the President was
introduced, many members of the Constituent Assembly were apprehensive. Then law minister
B.R. Ambedkar tried to allay those fears with an assurance. "The proper thing we
ought to expect," he said, "is that such articles will never be called into
operation and that they will remain a dead letter ... I hope the President who is endowed
with all these powers will take proper precautions before actually suspending the
administration of the provinces." It was
a promise unfulfilled. Prior to the 1967 general election that ended Congress dominance,
Article 356 was used on 10 occasions, five in Kerala. In the subsequent three decades,
President's rule has been imposed 84 times in 24 states. These range from Surjit Singh
Barnala's dismissal in 1987 following the sharp deterioration of law and order in Punjab
to the preposterous sacking of the Suresh Mehta Government in Gujarat in 1996 after he had
proved his majority in the Assembly. Far from rescuing a state from a genuine breakdown of
constitutional authority or coping with a legislative stalemate, Article 356 has gradually
been transformed into the Centre's whip against unfriendly state governments. Ironically,
on numerous occasions since 1989, the BJP has been at the receiving end of such vengeful
politics. Only in the rarest of cases has a ruling party at the Centre directed its wrath
at its own partymen in the states. Says former additional solicitor-general Abhishek
Singhvi: "Article 356 has had a history of abuse. Politically, it opens a Pandora's
box, for Coimbatore or Uttar Pradesh can be described as bad as Bihar." Before
President K.R. Narayanan put his foot down over Uttar Pradesh in October 1997, past
occupants of Rashtrapati Bhavan have meekly acquiesced in the subversion by the executive.
The landmark Supreme Court judgement (1994) in the S.R.
Bommai case made the use of Article 356 justiciable and helped establish some norms
governing the use of the provision. Justice K. Ramaswamy identified five possible
situations of constitutional breakdown:
- large-scale breakdown of law and order;
- gross mismanagement by a state government;
- corruption or abuse of its power;
- danger to national integration or security of the state;
- subversion of the Constitution while professing to work under
the Constitution.
The Supreme Court yardstick nevertheless leaves a wide scope
for subjective interpretation. The judges repeatedly stressed that Article 356 should be
used "sparingly" and keeping in mind the fact that "federalism in the
Indian Constitution is not a matter of administrative convenience, but one of principle
..." Justice P.B. Sawant went a step further and identified situations where the
dismissal of a state government would be improper. Article 356, he stated categorically,
"is not meant to be exercised for the purpose of securing good government". Nor
should it be used "on the ground that there are serious allegations of corruption
against the ministry". The apex court also went along with the Sarkaria Commission
report that President's rule would be improper if "the President gives no prior
warning or opportunity to the state government to correct itself". In the case of
Bihar, no warning was issued, prompting Singhvi to conclude that "neither the degree
of lawlessness or public disorder nor the breakdown of the home and police departments has
occurred to put Bihar in any exceptional situation".
If the Bommai judgement is examined in detail, rather than
merely perusing the five criteria set by Justice Ramaswamy, it is clear that a vigilant
judiciary and an independent-minded President -- Home Minister L.K. Advani praised
Narayanan's "constitutional uprightness" after he snubbed the I.K. Gujral
government over Uttar Pradesh last year -- can prevent the misuse of Article 356 for
partisan ends. The safeguards would have been even more in place had the Gujarat High
Court given its verdict on Mehta's challenge against his dismissal. Unfortunately, that
case proceeded on an excruciatingly slow pace before it was overtaken by events.
However, to view the debate on Article 356 in purely legal
terms is flawed. At the end of the day, it is a political issue. Misuse of this provision
can take place when political parties nurture the belief that the means to power is less
important than power itself. Unless democracy imbibes ethical norms, politicians will
remain in constant search of short-cuts.
- Swapan Dasgupta |
Soon after a meeting of
cabinet ministers and allies last Thursday, a confident L.K. Advani spoke to Deputy Editor
Swapan Dasgupta and Associate Editor Harinder Baweja at his
North Block office. Excerpts: 
On
september 25, Rashtriya Janata Dal supremo Laloo Prasad Yadav was tense
