If the President receives a palpably vulnerable or politically coloured recommendation on Article 356, he must return it to the Cabinet for reconsideration

Before the Supreme Court’s decision in the S.R. Bommai v. Union of India case (1994), the Karnataka politician Somappa Rayappa Bommai (1924-2007) was neither famous nor unknown on the all-India stage. He was neither prominent nor unimportant. He was just about there, a provincial figure like several others. But Bommai the case, gave Bommai the person a title in the constitutional life, in the judicial records and in the resultant politics of the country as it has not to other leaders of regional or national stature.

The Bommai precedent

Bommai had known more than a moment of glory in Karnataka as a major politician from its all-powerful Lingayat caste. Elected several times to the Legislative Assembly from Hubballi, he was Industries Minister in the State’s first Janata Party government headed by the charismatic Ramakrishna Mahabaleshwar Hegde (1926-2004). H.D. Deve Gowda (born 1933), from Karnataka’s other powerful caste, Vokkaliga, was PWD Minister in the same government. That made Bommai senior to the future Prime Minister of India. Following Hegde’s resignation on grounds of conscience in 1988, Bommai became Chief Minister of Karnataka, the State’s eleventh. But not a year had elapsed when large-scale defections from the Janata Party seemed to have cost him his majority. The Governor of the day, P. Venkatasubbaiah, a Congressman from Andhra Pradesh, promptly reported a breakdown of the constitutional machinery in the State to the President of India. And he recommended President’s Rule. Bommai met the Governor within hours of that to ask for a floor test, claiming that some of the reported defections were not genuine. The Governor paid no heed to Bommai and reiterated his stand to the President.

President R. Venkataraman regarded himself to be a ‘textbook President’, which meant that in matters like this he would go strictly by the advice of the Union government. The Congress government of the day was quick and eager to accept the Governor’s recommendation. The President accepted the cabinet’s advice on the same day that he received it and a proclamation was issued in a continuous motion of time under Article 356(1) of the Constitution. Bommai’s government stood dismissed without a chance to prove its majority in the House. Bommai challenged the proclamation unsuccessfully in the Karnataka High Court. He then took it to the Supreme Court where, after nearly five years of his dismissal, he received from a nine-member Bench not merely justice but a case-law stature undreamt of by him. The Supreme Court came down heavily on the misuse of Article 356 to impose Central rule on States. The Bommai judgment made it clear that Article 356 gave the President conditioned, not absolute, power, that the Supreme Court could review the materials, i.e. the facts and the reasoning behind the cabinet’s advice, and if found to be improper or mala fide, the court would provide remedy. It also drew a distinction between the breakdown of constitutional as different from administrative machinery. And, most pertinently, it made the test of majority strength in the Assembly by a clear vote in the Assembly the rule.

Stemming adventurism

Bommai brought back to attention B.R. Ambedkar’s reply in the Constituent Assembly to apprehensions about Article 356: “… I share the sentiments that such articles will never be called into operation and they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions.” Ambedkar’s hope notwithstanding, Presidents of the day invoked Article 356 not less than 90 times before Bommai — and as Justice B.P. Jeevan Reddy said memorably, in most cases with doubtful constitutional validity. Bommai changed all that. Large-scale defections designed to topple governments were made to look what they are: ugly. Darbari assessments by Governors of a Chief Minister’s majority were disbarred. The temptation of the Centre using its appointee in the Raj Bhavan to undo a State government of another political hue was put on hold.

It is not as if post-Bommai Union governments did not try to revive the ‘dead letter’. President K.R. Narayanan, who thought of himself not a textbook President but a Citizen President, received advice from the Union cabinet to impose President’s Rule twice. The first of these was from the I.K. Gujral government (October 22, 1997) seeking to dismiss the Kalyan Singh government in Uttar Pradesh. He returned it. The Bharatiya Janata Party (BJP), then in Opposition in Parliament, was overjoyed. The other was from the Atal Bihari Vajpayee government (September 25, 1998) seeking to dismiss the Rabri Devi government in Bihar. He returned that too. The BJP, then in power at the Centre, was crestfallen. In both instances, President Narayanan cited Bommai in support of his decision — its hold was fresh and strong. Narayanan’s returning of President’s Rule recommendations, of which Ambedkar would have been proud, upheld federalism and the democratic rights of elected governments.

President A.P.J. Abdul Kalam was conflicted when in 2005 he was advised by the Manmohan Singh government to impose President’s Rule in Bihar. But after an inner tussle which he has described in vivid detail (Turning Points: A Journey Through Challenges, HarperCollins India, 2012), he did sign the proclamation. He even contemplated resigning. But a signature is a signature and President Kalam’s grades in the matter of Article 356 do not match up to those of President Narayanan. President Kalam’s proclamation on Bihar was challenged in 2006 in Rameshwar Prasad v. Union of India and declared unconstitutional.

The return of Article 356

Nearly two decades on, Presidents, Prime Ministers and Governors do not think like Ambedkar or act like Narayanan. They are not troubled, like President Kalam was, by any inner struggles. They do not want to let Article 356 sleep, let alone become a dead letter. Its provisions, somnolent these many years, have in recent weeks been resuscitated to a new life. This is not to suggest that the governments being shown out of office have been blame-free; far from it. Their nervous anxiety over a possible loss of office has been unedifying. They have clung to Bommai as to a lifeboat. And, as the Uttarakhand ‘sting’ alleges, perhaps, to more than Bommai. But then, was Article 356 recommended and imposed for the sake of probity, constitutional stability or for realpolitik? MLAs are politicians. They may be Ambedkarite in professed intention; they are laterite in behaviour. Survival and dominion are the systolic and diastolic of their heart-rhythms. Speakers too are politicians on a temporary sabbatical. They may not resist their political impulses. But what does one say of the concerned Governors’ oaths to the Constitution? What does one say of the President’s signing of the proclamation bringing Uttarakhand under Central rule just one day before Harish Rawat was to take the floor test?

This, that politics is not for ‘active’ politicians alone. Article 356, like much else, is always there to be used, misused for resetting the arithmetic of power, the algebra of ambitions, and the geometry of the nation’s political architecture. As with Bommai and Rameshwar Prasad, the courts have provided remedy, albeit penultimate. But the Supreme Court’s asking for an immediate floor test in Dehradun during which the Presidential Proclamation which had been struck down by the High Court would remain “suspended” for a few hours to enable the test and its permitting the Attorney General, at his request, to “withdraw” the proclamation, and advise the President to revoke the proclamation, has opened the President’s use of his prerogative to anguished reflection.

President’s responsibility

Our republican constitution gives a certain ‘play’ to politics, and a certain responsibility to the President. Without prejudice to the constitutional voltage of cabinet advice, if the President receives a palpably vulnerable or politically coloured recommendation, he must return it to the cabinet for reconsideration. And, during the interregnum, consult the Attorney General and also senior counsel, of whom we are fortunate to have a good number, Fali Nariman being among the foremost. What the President can do if the cabinet reiterates the advice depends on the weakness of the recommendation and the strength of his conviction and, above all, on the President’s stature. The chances are that the cabinet will not treat a presidential misgiving lightly. President Narayanan did not let the dust of the playing field becloud his vision. He was exceptional; he should not be an exception.

Meanwhile we can and must say, ‘Jai Bhim, Jai Bommai’.

Gopalkrishna Gandhi, a former Governor of West Bengal, is distinguished professor of history and politics, Ashoka University.http://www.thehindu.com/opinion/lead/the-road-map-after-dehradun/article8591275.ece