Bommai V Union

Chapter 5 Conclusions and Suggestions Before theBommai[i]decision was delivered, the Constitution of India excluded the jurisdiction of the Supreme Court when the President declared emergency. However, things are now clear that the Court can now scrutinize whether the power provided by Article 356 has been misused or used arbitrarily or that there is no relevant as well as reasonable material to substantiate that the state will not be able work as per the provisions of the Constitution. It is to be noted that the Supreme Court of Pakistan had taken a similar view even before the Supreme Court of India and it is now crystal clear that the abuse of Article 356 will not be entertained. It was the hope that Article 356 would only be used in the rarest cases and that it should be resorted to only if it was felt required or the only way to avoid disaster, or after resorting to every means it was the only way left. The Court at this point will see whether the direction of the action was coherent and whether the operation of the Article was valid. It cannot be denied that Article 356 has never been validly and legitimately used, and an obvious example of this when there Presidential rule declared in kerala in 1959 and also in over a hundred cases. The daring way in which the AIDMK demanded the termination of the Dravida Munnetra Kazhagam ministry in Tamil Nadu clearly indicates that constitutional correctness is overshadowed by political dictates. TheBommai[ii]decision is a stern warning to the Centre and should remember that the Cabinet of the State is liable to the legislature of the state and as long as there is confidence that can be commanded, the Governor’s pleasure is just a constitutional understatement. In Shamser Singh's case[iii], there is a clear explanation of the President as well as the Governor. They are bound by the advice of the Cabinet and if they are to use their powers beyond their capacity, it would directly attract the Courts intervention as this would mean a violation of the provisions of the Constitution. When there is the strong demand that the state level democracy be dismissed by parties whether regional or even in the state level, it should not be entertained as such demands do not affect the Constitution and its message. Such an example is the cry made against the Bengal Government. The Governor in our country is only a formal head of the State and therefore has only a ritual functions in that capacity. But it cannot be denied that some of the powers of the Governor are quite effective powers. The advice of his Cabinet binds the Governor but he cannot blindly obey the mandates of the Union Government. The Governor must be an independent authority, his main aim to be totally subservient to the Constitutional provisions. The power of the President and the Governor include the asking for information, explanation and reconsideration. If these powers are used wisely, these functions of the Governor which includes referring of Bills to the President, for consideration and assent, makes the Governor a force not to be taken lightly. The Emergency powers of the President under Article 356 are usually the most spoken about and heavily discussed. It is unfortunate that that the remedial nature of the Article 356 have been perverted to impose the domination of Central Government over the state government. It cannot be denied that the article provides a huge amount of power to the Central government and the fact that it has been used numerous times just proves the fact that the hope of the founding fathers that the Article would remain a ‘dead letter’ has been dashed. It is ironic that despite the unsuccessful experience of the misuse of this provision during the British Raj in India, Article 356 was ultimately incorporated into the Constitution. In India, if we look into the history of Article 356 closely, we find that it is misused in two extremes-one being that its invocation being a misuse and the other being the failure to invoke emergency powers. For example after the fall of the Mayawati Government in the State of Uttar Pradesh[iv], it might have been justifiable to impose President’s rule, but it was also important that it hold fresh elections as soon as possible. The malafide of the Union Executive in preventing the assumption of office by an unfavorable political entity become clearly manifest in Governor Bhandari’s actions and the decision of the United Front Government at the Centre to impose President’s rule in U.P. The worst damage may possibly have been through the office of the Governor because the Governor cannot be held responsible for his or her actions. Another blatant misuse of Article 356 was the imposition of Presidents rule in the State of Gujarat from September 1996 to October 1996 following the incidents of violence indulged in by the members of the Gujarat legislative assembly. [v] Justice Soli Sorabjee[vi] pointed out that violence within the Assembly cannot be treated as an instance of failure of the Constitutional machinery, it would otherwise become very easy for[vii] malicious legislators to dissolve a duly elected legislative body by creating a pandemonium in the assembly and thereby prompting improper application of Article 356. The correct procedure to be followed in such a situation is to pass suitable legislation for disqualifying the guilty legislators.[viii] On the other extreme, the misuse of not invoking Article 356 is seen clearly in the ugly incident of the Godhara train incident on the 27th of February, 2002. It was reported that there were more than 100000 persons who were in refugee camps and that more than 30000 people were chargesheeted. I clearly feel that these figures were enough for the government to have taken an action under Article 355 and 356. Looking at the past events in history and the problems caused due to the misuse of Article 356, it cannot be denied that a darker side to Indian democracy is being portrayed. However, the intervention of the Supreme Court after the Bommai case, coupled with the guidelines of the Sarkaria Commission clearly show that Article 356 should be used only in the rarest cases and that the Union Government should not exploit the Article for their personal benefit. According to me the following are the requirements that should be made in Article 356: 1) The report of the Governor should be submitted to the President and the Chief Justice of the concerned State High Court. Only when there is a unanimous agreement that the State Constitutional machinery has failed, it is then that the President’s rule should be imposed. 2) The satisfaction of the President should literally be the satisfaction of the President and not the Union Government. 3) The word “or otherwise” should be removed from Article 356 because it gives power to the Central Government to declare state emergency without the report of the Governor. 4) The President of India should work according to the provisions of the Constitution of India and not according to the whims of the party in power in the Union Government. 5) Lastly, before the proclamation of an emergency the Governor’s report and the satisfaction of the President on the Governor’s report must be published in all daily newspapers. ENDNOTES

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[i] S.R.Bommai v Union of India, AIR 1994 SC 1918. [ii] S.R.Bommai v Union of India, AIR 1994 SC 1918. [iii] Shamser v. State of Punjab, 1974 AIR 2192, 1975 SCR (1) 814. [iv] http;//www. ejcl.org/81/abs81-4.html, accessed on 29/04/2014. [v] https://www.legalservicesindia.com/article/article/exercise- of- legislative- powers, accessed on 29/04/2014. [vi] http;//www. ejcl.org/81/abs81-4.html, accessed on 29/04/2014. [vii] http;//www. ejcl.org/81/abs81-4.html, accessed on 29/04/2014 [viii] http;//www.legalservicesindia.com/.../exercise-of-legislative-powers-by-the-exe, accessed on 29/04/2014

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