Why Article 356 ? Who Will Form Government in Maharashtra? Legal View Point

INTRODUCTION

With the current strength of 288 member Maharashtra Assembly, one of the biggest Legislative Assembly of India, is currently facing with Constitutional crisis as President Rule is in force since 12th November 2019 as all the election contesting political parties have failed to attain magical number of 145 seats to form government with clean majority and have further failed to attain above magical number by forming an alliance even after almost three weeks since the election results came out. Therefore, Hon’ble President Ram Nath Kovind has decided to impose President’s Rule as per Article 356 in Maharashtra based on the recommendation of Maharashtra Governor Bhagat Singh Koshyari

PURPOSE & NATURE OF ARTICLE 356

Dr. B.R. Ambedkar, Chairman of the Drafting Committee, explained the purpose and nature of this provision. Emphasising the need for caution and restraint in its application, he observed:—

“I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact I share the sentiments……that such articles will never be called into operation and that 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 before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article”.

From bare reading abovementioned reason of Dr. B.R. Ambedkar regarding why Article 356 is included in our Constitution & when it must be invoked is crystal clear that he expected that this extraordinary provision would be called into operation rarely, in extreme cases, as a last resort when all alternative correctives fail. Despite the hopes and expectations so emphatically expressed by the framers, this nation has witnessed many situations where just for political lust this Article has been invoked in haste keeping aside the reasons and expectations of framers of the Constitution.

CURRENT STATE OF AFFAIRS

Elections were held in Maharashtra on October 21 and results were announced on October 24 and as per the Election Commission each party secured herein below mentioned seats:-

 TOTAL 288   

On paper situation seems quite simple as both BJP (single largest party) & Shiv Sena (second largest party) which were having their pre-poll alliance are securing majority i.e. 145 seats but things are not as simple as they seem to be because both political parties are not actually concerned with forming a stable government but are more concerned with seat of Chief Minister for duration of 5 years. Further the NCP and Congress which were having pre-poll alliance have failed to secure majority number of seats and have furthermore failed to give official support to Shiv Sena due to so-called ideological differences. They could have attained majority (56+54+44=154)   if the Governor hadn’t given them a time constraint of 24 hours. Therefore, the greed of power and want of authority has led to a situation where none of the party is able to form government in State calling failure of constitutional machinery of Maharashtra and invocation of Article 356 by President of India.

It is noteworthy to mention that similar kind of situation had arisen on March 7, 2005 in State of Bihar where President Rule was imposed on the ground that no party had the required majority of 122 MLA’s in 243 members Assembly and Hon’ble Apex court in the case of Rameshwar Prasad v. Union of India dealt with this issue and the 5 Judge Bench of Supreme Court by 3-2 majority held – The President proclamation dissolving State Assembly was unconstitutional and based on irrelevant and extraneous grounds. The court held that the governor misled Centre in recommending failure of constitutional machinery of State. The Union Council of Ministers should have verified before accepting it as gospel truth. The Governor acted in “undue haste” in sending his report and his full motive was to prevent JD(U) from staking claim to form government after a fractured Assembly poll verdict, the Governor report contains “fanciful assumptions” which could be “destructive to democracy”.

It is usually said that “History repeats itself” and this proverb seems true when we compare abovementioned case with present situation as Governor rejecting the request of Shiv Sena for giving them further time of 3 days, only provided them 24 hours for submitting requisite letter of support proving their majority which they ultimately failed and taking this as major ground Governor submitted report to the President calling for imposition of Article 356 due to failure of constitutional machinery of State as no party has claimed forming Government by submitting requisite letter of support and President with aid and advice of Union Council of Ministers has acted on the above report and has imposed State emergency. However, the petition filed by Shiv Sena, challenging this decision of Governor before Hon’ble Supreme Court on the grounds that said decision is mala fide and based on totally extraneous & irrelevant grounds, is still pending.

WHEN ARTICLE 356 CAN BE INVOKED?

In the case of S.R. Bommai v. Union of India Hon’ble Supreme court issued guidelines regarding when Article 356 can be invoked, facts in brief are that President Rule was imposed in 3 states Madhya Pradesh, Himachal Pradesh and Rajasthan and assembly were dissolved on the grounds that these state were not implementing sincerely the ban imposed by centre on religious organization. This Order was challenged before Hon’ble M.P. High Court and the court with 2:1 majority quashed the order imposing Presidential Rule on the grounds that it was beyond the scope of Art. 356 as it was solely based on suspicion and not on evidence. Union Government filed an appeal against M.P. High Court’s verdict and Constitutional Bench of 9 Judges of Supreme Court held, imposition of Presidential Rule in 3 States was valid and constitutional, on the grounds that if Basic Structure of Constitution seems to be hindered by the Government, the Governor as a guardian of Constitution can impose State Emergency. Further also held that Imposition of Presidential Rule and dissolution of State Assembly cannot be done simultaneously via single order and hence, quashed the decision of M.P. High Court. Therefore, via Presidential order dated 12th November 2019 only State emergency was declared in Maharashtra and State Assembly was not dissolved and it is still in function.

At this juncture it is not out of place to mention that Sarkaria Commission also was of the opinion that power enumerated under Article 356 of Constitution must be used in rarest of rare cases dealing with extreme situation, relevant extract of repost is reproduced herein under:

“It is, therefore, necessary to preserve the overriding powers of the Union to enable it to deal with such situations and ensure that the government in the State is carried on in accordance with the provisions of the Constitution. We are firmly of the view that Article 356 should remain as ultimate Constitutional weapon to cope with such extreme situations.”

Since the Commission was headed by a distinguished Judge of this Court and also because it made its report after an elaborate and exhaustive study of all relevant aspects, its opinions are certainly entitled to great weight notwithstanding the fact that the report has not been accepted so far by the Government of India.

PROBABLE GOVERNMENT FORMATION AND CONSEQUENCES

It is worthy to notice that proclamation issued under Article 356 shall be laid before each House of Parliament and shall remain in operation for ‘two months’ unless before the expiry of that period it has been approved by both House of Parliament [Article 356 (3)]. Till now it has not been approved by both the Houses of Parliament and it is expected that within these 2 months one party or the other will settle their greed of power and will claim for forming Government and as soon as any party approaches Governor with requisite documentary requirement for forming government, the Governor will revoke this emergency via another proclamation. And without prejudice to above if we assume that neither party approaches Governor for government formation within these 2 months then crisis will take supreme form as NDA government has majority only in House of People and not in Council of State. The big question here is that it is doubtful that  this emergency resolution would be passed by both House of Parliament and if it is passed then State emergency would extend for 6 months but if it is not passed the Governor will certainly dissolve Legislative Assembly and re-election may be held in the State as dissolution of State Legislature can be done before it is being summoned to hold meeting as Assembly is capable of being dissolved once it is constituted.

Now the question that begs to be answered is if Shiv Sena, NCP and Congress agree to form an alliance to run a stable government or can BJP, the single largest party, having government at Union still has ball in their court or not? In this context we must observe circumstances governing this scenario. Firstly, President of India & Governor of the State will most probably support BJP (no specification required). Secondly, NDA is having full majority government at Union level. Thirdly, Governor after formation of this alliance can again send a report to President of India that Constitutional machinery has failed calling invocation of Article 356 on ground depending as per situation. Now if the governor submits such a report and President invokes Article 356 then power of Governor of State and the Government of State will vest in President [Article 356(1) (a)] and then State Government and State Assembly will get temporarily suspended. Now BJP would certainly desire for a fresh election as Shiv Sena which was believed to be a core Right-wing & Pro-Hindutva political party have broken pre-poll alliance with BJP who also comes from the same wing and believes on similar ideology and has made alliance with NCP and Congress which are considered as critic of such ideology, just for greed of power. And this act must have damaged the image of this pro-Hindutva party as voters will surely think Shiv Sena has played fraud with them just for the seat of Chief Minister.  BJP will surely desire to change this anger of voters towards Shiv Sena, into votes for them by holding a fresh election and winning this election by complete majority to form government and this desire of BJP may come true as Article 174(2)(b) vest power in favour of Governor to Dissolve Legislative Assembly on the advice of the Council of Ministers in the State. But the power to give such advice would automatically be taken over by the Union Government as the President has assumed governmental powers by a proclamation under Article 356(1) of the Constitution and hence, dissolution by the President after the proclamation would be as good as dissolution by the Governor of a State whose powers are taken over. On the cost of repetition it is mentioned that NDA is having full majority Government at Union level so the President of India and Governor of State will favour BJP (no specification required) and therefore, Assembly can be dissolved and a fresh election can be held as per the pleasure of BJP.

CONCLUSION

Needless to mention that both President and Governor have duty to preserve, protect and defend the Constitution and the law and they also take oath and affirmation for the same [Art. 60 & 159 respectively] and being a protector of this constitution both these institutions have moral obligation to check that this nation works as per framework of this sacred text known as Constitution but the sad reality is that these institutions just behave like toothless tiger in front of Political parties who appoints them, and remain mute spectator to their illicit unconstitutional activities as evident from various historical events.

Reflecting   on   Indian   parliamentary   democracy,   the   words   of André   Béteille,   Professor   Emeritus   of   Sociology,   need   to   be observed:

“In a parliamentary democracy,   the obligations of constitutional morality are expected to be equally binding on the government and the opposition. In India, the same political party treats these obligations very differently when it is in office,   and when it is out of it.   This   has   contributed greatly   to   the  popular   perception   of   our political system as being amoral…”

In this context framers of the Constitution entrusted ‘we the people’ with the responsibility to uphold the constitutional values. Having attained freedom, the question which needs herein to be answered is, to what extent we have discharged our duty and sustained our democratic and constitutional obligations? Political party’s just for want of power and authority don’t even think twice while playing fraud with people who voted for them. People who hold Constitutional office just to satisfy political party, who have appointed them, works as per their pleasure keeping aside constitutional mandate and “we the people of India” after seeing and knowing all this again and again trust these political parties & their leaders and create prejudice and hatred among our society, and this vicious circle continues, as no one thinks for upholding constitutional values, no one cares for this nation, and to change this scenario we as a society will have to change.

This article is authored by Jayesh Ravi Gurnani, Student of B.A. LLB 3rd Year, School of Law, D.A.V.V, Contact No. – +91 9827965692 

Also Read – Article 370: An Untold Story