Why the Modi Government's Decision to Impose President's Rule in Uttarakhand is Unconstitutional

The BJP at the Centre has mocked the integrity of well-established institutions and created a disaster for Indian democracy.

“The proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter,” said B.R. Ambedkar while replying to questions raised by H.N. Kunzru on the consequences of invoking Article 356. However, this Article has been used, and misused, over 120 times so far, belying the expectation expressed by the architect of the constitution. The political parties that come to power at the Centre have not missed an opportunity to dislodge a state government they did not like.

The bizarre situation created in the state of Uttarakhand has thrown up grave constitutional issues. Political parties, the Centre, the state government, and finally the single bench of the Uttarakhand high court have contributed enormously to the imbroglio in the benighted state. Finally, a semblance of sanity has returned with the learned judges of the division bench of the high court staying the operation of an order issued by a single honourable judge – which allowed the deposed chief minister to prove his majority through a floor test when president’s rule is in force, and restored the voting right of the disqualified members of the assembly. The division bench will now hear the challenge to the presidential proclamation of March 27.

Constitutional grounds for president’s rule

The use of Article 356 to dismiss a state government and impose president’s rule is now regulated by the landmark judgment of the Supreme Court in the Bommai case, which laid down two propositions: first, the proclamation issued by the president under Article 356 is subject to judicial review, and second, the question of majority should be decided on the floor of the legislature and not in the Raj Bhavan. It also listed out the situations under which  president’s rule should not be imposed. However, this judgment did not enumerate the grounds on which Article 356 can be invoked. Article 356 says that if the president is 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, the president will assume to himself the functions of the state government. This in simple language means the imposition of Central rule.

The words “the government of the state cannot be carried on in accordance with the provisions of the constitution” essentially means the provisions relating to the administration of the state, and not any and every provision in the constitution. There are some core provisions that are central to administering a state. For example, the provision that requires the council of ministers to be collectively responsible to the legislature means that if the government loses its majority in the house and no alternative is possible, then president’s rule becomes unavoidable. Secondly, if a state government cannot get the budget passed, it loses its constitutional right to administer the state. Thirdly, if there is large-scale internal disturbance that cannot be controlled by the state government, intervention by the president will become necessary. Fourthly, if a state fails to comply with any direction given by the Centre in exercise of its executive powers, president’s rule can be imposed.

There may be many other situations causing the breakdown of the constitutional machinery in a state necessitating presidential intervention, but the situations mentioned are the most crucial to the administration of the state. The imposition of president’s rule on the ground of non-compliance with the Union government’s directions has perhaps not been done so far.

Bribery as grounds for imposition of president’s rule

Now let us try to understand the Uttarakhand situation, which was needlessly complicated by the Centre’s untimely intervention.

It was perfectly legitimate for Governor K. K. Paul to ask former chief minister Harish Rawat to prove his majority in the assembly on March 28, after nine Congress members broke away from the party. The governor acted perfectly in accordance with the directions of the Supreme Court in the Bommai case.

But a day before the floor test was to be held, the Union cabinet held an emergency meeting and advised President Pranab Mukherjee to impose Central rule in the state. An unprecedented move, it showed complete disregard of the law laid down by the Supreme Court. President’s rule should have become an option only after the floor test.

What triggered the emergency meeting was the governor’s report after a sting operation showed Rawat offering money to MLAs for their support. In a fit of great moral outrage, the Centre decided to act quickly. Mukherjee was said to have signed the proclamation when he was shown the video, which was certified as genuine by a forensic lab. This means that president’s rule was imposed on the ground that the chief minister had attempted to bribe some legislators for their support.

This reason is alien to Article 356. At best it could be the basis of a petition against the chief minister under the Prevention of Corruption Act, but it certainly does not justify the imposition of president’s rule.

Failure to pass Appropriation Bill as grounds for Central rule

The BJP brought up another reason in support of the imposition of president’s rule. It was claimed that the state government could not get the Appropriation Bill passed and this led to a situation in which the government could not function in accordance with the constitution. But this argument requires a closer examination.

According to the speaker’s statement, the Appropriation Bill was passed by voice vote on March 18. As per the procedure and practice, this bill is passed by voice vote and no division (recording of vote) is held or allowed, as such a bill is used to authorise the government to appropriate the money from a consolidated fund that has just been voted by the assembly. Once the house has voted the grants, the bill to authorise the appropriation of the same grants cannot be opposed. Article 204 bars even amendments to such a bill. Given that the Uttarakhand assembly had voted the grants, any demand for a division of vote is against the constitution and well-established parliamentary practices. Thus, the imposition of president’s rule on the ground that the Appropriation Bill could not be passed is unconstitutional.

Who decides if an Appropriation Bill has been passed? It is only the speaker, and the Constitution does not recognise any other authority to decide on this question.

Article 212 provides house proceedings immunity from being called into question before a court of law. Even when the speaker refuses to order a division of vote when it is demanded for other bills, it could be considered a procedural irregularity, which the court will not look into.

This position was settled in 1952 in the State of Bihar v. Kameshwar Singh case. In this case, a bill passed by the Bihar assembly was challenged inter alia on the grounds that the speaker did not formally put a motion before the assembly to pass the bill, and thus it was contended that the bill had not been passed. The Supreme Court relied on the speaker’s endorsement of the bill to signify that it had, in fact, been passed, going on to say that it was a procedural irregularity and Article 212 bars the court from looking into it.

This immunity has been provided to the proceedings of a legislative house because otherwise there may be frequent challenges in the courts, and the house will be unable to function with absolute freedom – which is its privilege.

An unconstitutional imposition

But president’s rule cannot be imposed under Article 356 due to a procedural irregularity in the proceedings of the assembly. To presume that the government was in a minority, and thus unconstitutional, when the Appropriation Bill was put before the house on March 18 makes no sense because the grants were passed just before that by the same house. Moreover, the question of majority was to be decided on March 28 as per the governor’s direction. Until such a vote is held, the government is presumed to have the confidence of the house.

Thus, the imposition of president’s rule in Uttarakhand is without constitutional basis. The Union government followed it up with the prorogation of parliament and the promulgation of an ordinance to appropriate money from the consolidated fund of the state. Even this ordinance is an admission of the fact that the state assembly had voted the grants, as otherwise the Appropriation Bill could not have been brought through an ordinance. As a matter of fact, the Appropriation Bill had already been passed by the assembly. So prorogation against the rules of both houses of parliament and the promulgation of an ordinance were totally unnecessary. It is hoped that the high court will be able to untangle this mess.

The Uttarakhand saga is an interesting case study for students of the Constitution. It has played out like a 15th century morality play, and the politics of it is too clichéd and hypocritical. It has mocked the integrity of well-established institutions. And it is far too disastrous for Indian democracy.

P. D. T. Achary is the former Secretary General of the Lok Sabha.