President’s rule is evil. It is doubly evil when imposed randomly. The central government is starting on the path of creating instability in states, which is an abuse of the constitution.
The political crisis in Arunachal Pradesh is an attempt by Narendra Modi to conquer by toppling governments. Having failed electorally in Delhi and Bihar, he and BJP president Amit Shah have come up with other means of winning. The BJP set the stage for regime change in Itanagar by seducing 14 of the state’s 47 Congress MLAs in a house of 60. Not unnaturally, when the speaker disqualified 14 “converts” under the Anti-Defection Xth Schedule of the Constitution, the BJP faced a problem. Even if the Congress was down to 33, they still had a majority in a reduced house of 46.
Needless to say, defections are perverse and unconstitutional; and the speaker was right to disqualify the renegades. To ensure that the assembly met within six months of its last sitting (i.e. before January 21, 2016), the governor (on the advice of Chief Minister Nabam Tuki, who has been in power since the Congress won the November 2011 election) convened the assembly for January 14 2016. The crisis should have been over, but for the governor.
Governor JP Rajkhowa, however, was clearly being responsive to the BJP. On December 9, he peremptorily advanced the date of the assembly to December 16, and sent a message to the house that its composition will be unchanged (to nullify the disqualification of the 14 defectors by the speaker) and that the speaker’s removal was to be itemised first. This was political interference not warranted by the Constitution into the democratic politics of Arunachal. The CM was appalled. The speaker asked the home minister to cordon off the assembly building from an illegal occupation. The dissident Congress group, the BJP and independent MLAs met subsequently on December 16-17 in a community hall under the deputy speaker who had already been disqualified by the speaker for having defected. Clearly the meeting was non-est. As, indeed, the resolution to appoint an alternative government immediately.
How can a disqualified deputy speaker remove his and other disqualifications when even the speaker has no power to review his decision? Kapil Sibal went immediately to the Gauhati high court. Justice Hrishikesh Roy ruled that all disputed decisions would be put in abeyance. However, another judge, Justice Sharma, after an unsatisfactory hearing, removed the abeyance order and dismissed all the Congress writ petitions in the high court. Chief Minister Tuki and the speaker, Nabam Rabia, then filed cases in the Supreme Court, which heard the matter before a five-judge Constitution bench. If politics were to follow the law, then even without an order, matters should have remained frozen until the Supreme Court delivered its judgment on the legality of the so-called assembly meeting convened by the disqualified deputy speaker, the governor’s decision to advance the date of the assembly’s session, the disqualifications, the restoration of the disqualified MLAs and the removal of the speaker and the Tuki ministry.
A second dismissal
Now, I must digress. I was appearing for the state of Arunachal Pradesh in the Supreme Court. Nobody had objected. My sense was that the Supreme Court was not convinced about the Governor’s decision and message of December 9 2015, the community hall ‘assembly’ session of December 16-17, or the resolutions passed there. After president’s rule was imposed on January 26, 2016, I also filed a grievance about the sealing of the chief minister’s premises and office and the removal of papers, hard discs, etc. from them. In part the Supreme Court reversed these travesties. This was a fried egg on the Attorney General’s defence of these actions. But on February 1, the administrator copied a letter to me which read as follows:
“Dr. Rajeev Dhawan, Ld. Senior Advocate is hereby requested not to appear on behalf of government of Arunachal Pradesh in case nos SLP (C)1259/2016 & SLP (C) 1260/2016 in Hon’ble Supreme Court of India. He is also requested not to appear in any case pertaining to Government of Arunachal Pradesh. This issues with the approval of the competent authority.”
In plain English, Senior Advocate Dhavan (spelt wrongly) was sacked. Can a senior advocate lawyer be sacked by a client in this a way? The answer is No! I was appearing in the pre–president’s rule case. In the post president rule’s case, I had an alternative brief for the Congress’s chief whip and against emergency rule. I was not conflicted. The two cases were different. The governor or even president could have stopped me from appearing for the state in the president’s rule case. But in the pre-president’s rule case, I was only going to take the same stance that the state had taken in the high court and the Supreme Court. What was the governor afraid off? Me? Sibal and Nariman were already in the fray. I am flattered that I was perceived as a danger. Frankly, this letter was petty, arrogant, peevish and stupid. A flexing of muscles interfering with a case sub judice before the Supreme Court. I leave it there.
Misuse of emergency powers
The power to impose president’s rule is an emergency power. It has the dual effect of subverting both federalism and parliamentary democracy. It owes its origins to the Government of India Act 1935, when imperial viceroys told governors what to do. It was retained in the constitution for unanticipated emergencies. In fact, it should never have been retained at all. If the central government can operate parliamentary democracy without emergency rule – so can state governance. It was inevitable that president’s rule in the state would be politicised. The moment came when a Communist government was elected in Kerala in 1957. Krishna Iyer, a member of that government told me that when he told Nehru that the Kerala government would accept all his demands, Nehru was dismayed and said: “Ask Indira”. This meant Indira Gandhi, then the president of the Congress, who, with Govind Ballabh Pant, hatched the disorder and the conspiracy.
When Mrs. Gandhi faced the rise of ‘opposition’ governments in the states, she was ruthless in the imposition of president’s rule: Rajasthan (1967), Haryana (1967), West Bengal (1968), UP (1969), Bihar (1968), Punjab (1968), Pondicherry (1968), Bihar (1969), Manipur (1969), West Bengal (1970), Kerala (1970), UP (1970), Orissa (1971), Mysore (1971), Gujarat (1971), Punjab (1971), West Bengal (1971), Bihar (1973), Andhra (1973), Orissa (1973), Manipur (1973), UP (1973), Pondicherry (1974), Gujarat (1974), Pondicherry (1974), Nagaland 1975), UP (1975), Tamil Nadu (1976), Gujarat (1976), Orissa (1976), JK (1977).
I list these and have left some out. In each case, governors went hay-wire to defeat ‘opposition’ coalitions in power. Defections for money and office were induced – mostly by the Congress but also others. Mrs. Gandhi thought her power was limitless. 1967-70 were toppling years – by fair and foul means. Between 1971 and 1977, after winning the Bangladesh war, she did a “mirror-mirror-on-the-wall, am I not the Queen Empress of them all?” Like Kerala (1959), Manipur was dismissed in 1969 on law and order grounds and UP because of a constabulary revolt (1973). Tamil Nadu (1976) was dismissed on grounds of corruption. This collapsing of federal and legislative democracy was unbelievably beyond redemption. The national emergency (1975-77) eclipsed everything.
After the Congress was routed in 1977, Shanti Bhushan, who became the Janata party government’s law minister, ordered 9 majority Congress ministries to be destroyed by president’s rule. When Mrs. Gandhi returned to power in 1981 she vengefully dissolved 9 non-Congress ministries. The Supreme Court blessed these vindictive uses of power. After this, it was thought that there would be respite. But president’s rule was imposed in Manipur (1981: 110 days); Assam (1981: 197 days); Assam (1982-3: 345 days); Pondicherry (1983-85: 1 year 265 days); Punjab (1983-85: 1 year 354 days); Sikkim (1984-5: 287 days); J&K (1986: 246 days); Punjab, for which the constitution was amended for the “killing fields” president’s rule: 4 years 259 days, Mizoram (1988-9: 139 days); Karnataka (1989: 223 days); J&K (1990-1996 : 6 years, 254 days). There was no respite with president’s rule from 1991; there was president’s rule in Haryana, Meghalaya, Manipur, Nagaland, UP, Himachal, Rajasthan, Tripura, Bihar, Gujarat, Goa, JK, Karnataka, Jharkhand, Delhi, Andhra Pradesh, Maharashtra, and now Arunachal in January 2016. What a formidable implosion of the Constitution.
This list is devastating. Are our states ungovernable? The main grounds seem to be defections, law and order, corruption, state reorganisation and what you will. No state government is spared. The politics of defection has corroded the polity. If the Centre can survive without president’s rule so can the states. In most cases, the governor was compliant to the government in power at the Centre. As one book suggested in its title, the governor was no sage. He was a saboteur.
There were at least some attempts at constitutional protest but it did not come from parliament, which is supposed to approve president’s rule in two months. My book President’s Rule in the States (1979) shows that parliament – which saw robust debates in the case of Kerala in 1959 – became rubber stamps in subsequent years. It is only on some occasions that the president used his power to “reconsider”, given to him in 1979. In 1997, the president asked the government to re-examine the imposition of Central rule in the case of UP. Again in 1998, in Bihar, the president refused to accept ‘the law and order’ justification for president’s rule. But, it was to no avail when the decision to re-impose president’s rule was taken. The only saving grace was that the lack of majority in the Rajya Sabha led eventually to its withdrawal. The last port of call is the judiciary. In the Bommai case (1993), the Supreme Court claimed judicial review over presidential impositions and struck down the proclamations in Karnataka, Meghalaya and Nagaland. In Rameshwar (2006), the Supreme Court found that there was “no material, leave alone relevant material” for imposing president’s rule in Bihar.
All this tells us that the impositions of president’s rule are evil. The only real respite can come from the Supreme Court striking down these subversions of federal democracy.
The Arunachal case is open and shut
The case of Arunachal is amongst the most disreputable uses of president’s rule. The overall questions before the imposition of president’s rule were: did the governor have the power to disregard his chief minister’s advice and advance the Assembly’s session from January 14 to December 16? Could he have interfered with the speaker’s exclusive power to disqualify defecting MLA’s? Could he have recognised legislative business in a community hall? Could he have recommended president’s rule on December 17, 2015? Could the Centre have imposed president’s rule when the Supreme Court was hearing the very matters that impinged on whether such an imposition would have been right? Lastly, instead of signing the request after the Republic Day parade, should the president have referred the matter back for reconsideration? The answer to all this was that the governor and the Centre acted presumptively, presumptuously and preemptively in total disregard of the truth and constitutionality.
Firstly, we must remember that the constitution is based on principles and not just an untidy text. It is the principles of parliamentary democracy, federalism, reasonableness and judicial review which are fundamental, along with other elements of its basic structure. Lawyers for the governor and the BJP relied on simple interpretations of the text rather than elaborate constitutional principles. These principles would have established that Governor Rajkhowa was a constitutional figure head who had to act on the aid and advice of his chief minister. He had no business to act on the advice of the opposition indulging in unconstitutional defection; or, on Congress MLAs being seduced by unprincipled crossings of the floor. On December 9, 2015, he had no business to advance the date of the assembly on the opposition’s advice; or to set a political defection-prone agenda to remove the speaker and then vote (effectively to remove) the ministry. This was clearly partisan.
The defection issue has been with India for a long time. In 1985, the constitution was amended to ensure that only principled defections were made – by groups, or through mergers. The stray abandoning of parties was not to be tolerated. This was put in the Xth Schedule and was found to be valid in the Kihoto Hollohan case (1992). The speaker’s ultimate exclusive power to determine defections was subject to judicial review. Unfortunately, the politics of greed–motivated defections continued on the basis of money and promised posts. To deal with this, the anti-defection provisions were again amended in 2003. This time, defection by group ‘splits’ were declared unconstitutional; and the size of the cabinet was reduced to obviate rewards of ministerial seats. However, the anti-defection law remained amorphous and obtrusive until disciplined by about 10 Supreme Court decisions between 1992-2008. After these judgments, there is little scope for controversy. Defections (other than mergers – not splits) are unconstitutionally impermissible. No governor could take note of them. The decision on defections was to be taken exclusively by the speaker, subject to judicial review by the Supreme Court and high courts. No one else can interfere; or be seen to interfere.
Second, the governor has to act on the advice of the chief minister, who is accountable to the legislature which was born out of elections by the people. While the governor has right to get information from the chief minister, he cannot move over to the opposition camp for information, advice and action. This is what Governor Rajkhowa did.
Third, the governor’s report was sent to the president on December 17 – the same date on which the high court ordered abeyance. The governor is not above the law. Read his reports. They reprimand the court, which, on examining the facts, found the case of the governor and opposition suspect, in fair and reasonable language with judicial rectitude. No governor could possibly have recognised the community hall assembly, recognise validly disqualified defectors or overturn the speaker’s decision over which he had no say.
Fourth, what was the central government doing between December 17, 2015 and January 26, 2016? The governor had submitted to the jurisdiction of the high court and Supreme Court. His actions were under judicial and constitutional x-ray. The Supreme Court was examining some of the very elements that appeared to be profiled as the basis for president’s rule. But, the central government and governor appeared to be losing in court. Having waited for a month (president’s rule is to be ratified in two months), central rule was imposed when none of the immediate reasons for imposing it existed. The only real reason for its imposition was political opportunism to unseat the Congress government in Arunachal and win a state by means which are an embarrassment to constitutional democracy.
President’s rule is evil. It is doubly evil when imposed randomly. Governors who side with the opposition and contrive to impose president’s rule are not fit to be governors. The central government is starting on the path of creating instability in states, which is an abuse of the constitution. It is a curse that India’s polity thought it had got rid of. President Pranab Mukherjee should have returned the request for president’s rule. Perhaps he will tell us in his future memoirs why he failed to do his constitutional duty on this occasion.