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This article is penned down by Pranjali Aggarwal of the University Institute of Legal Studies, Panjab University, Chandigarh. The article deals with the constitutionality of the imposition of President Rule in the name of the COVID-19 pandemic.

Introduction

The Coronavirus has affected the entire world- from the Leaning Tower of Pisa to the Statue of Liberty. In India, the continuous spread of the virus has exacerbated the conditions. Despite the adoption of several measures, the end of the pandemic does not seem to be a reality in near future. The cases are snowballing and in some states, the conditions are worse than others. The pandemic has exposed the incompetency and inability of the state to manage and combat situations like pandemics. Several people including the Aam Aadmi Party (AAP) MLA Shoaib Malik, the Union Minister Ramdas Athawale, the Lok Janshakti Party (LJP) spokesperson Abhay Kumar Singh have demanded the imposition of President rule in Delhi, Maharashtra, and Bihar respectively, asking Centre Government to come forward and help states to battle this pandemic as states are not able to deal with the situation.

President’s Rule

As the term itself suggests, President’s Rule refers to the imposition of direct control of the President over the state, and all the powers vested with the state government are dissolved for the time being. With the imposition of the President’s Rule, the Governor becomes the constitutional head of the state on the behalf of the central government. Dr BR Ambedkar called it ‘the dead letter of Indian Constitution’ because he believed that it would not be used but contrary to his opinion this provision has been used numerous times. It is also called ‘State Emergency’ or ‘Constitutional Emergency’.

This power to invoke President’s Rule is vested with the President and is envisaged under Article 356 of the Indian Constitution and can be used in two cases:

  1. If the report is presented by the Governor of the state or in any other circumstance that evokes the satisfaction of the President that president’s rule should be invoked in the state in the wake of justice or interest of the public at large.
  2. If the President is of the opinion and is satisfied that the state government is not working according to the provisions of the Constitution of India and the Constitutional machinery in the state has broken down.

Some situations in which Article 356 can be invoked are as follows:

  • The Chief Minister of the state is not elected by the state government within the prescribed time limit decided by the Governor of the state.
  • The ruling party loses the majority because of any reason and the no-confidence motion is passed in the state legislature.
  • The condition of insurgency, rebellions, etc have exacerbated in the state and the state government is unable to combat the issue.
  • Postponement of the state elections due to any reason (war, epidemic, etc).

Tenure of President’s Rule

Once the President’s Rule is proclaimed by the President under Article 356, it stands for six months initially, if it is not revoked. President’s Rule can extend up to a total of three years, subject to the approval of Parliament every six months as a general rule. This duration was restricted by the 44th Amendment Act, 1978. After the 44th amendment, the President’s Rule cannot exist beyond the period of one year in the following cases:

  • A national emergency is declared in the state.
  • The Election Commissioner of India has announced the difficulty to conduct assembly elections in the state.

The aftermath of imposition of President’s Rule

  • The governor is conferred with the power to govern the administration of the state on behalf of the President. The state’s Chief Secretary and other advisors (appointed by the Governor) can assist in administration.
  • The Parliament can exercise the executive power of the state as declared by the President.
  • It leads to the dissolution of the state assembly.
  • In cases when the Parliament is not in session, the President can issue Ordinances regarding the administration of the state.

Revocation of the President’s Rule

The President’s Rule in the state can be revoked in the following ways:

  • The President can make a subsequent proclamation that revokes the president’s rule. This proclamation is not subject to the approval of the Parliament. Generally, such proclamation is issued by the President when the leader of the state government present his willingness to form the state government as he has acquired the desired majority in the assembly; or
  • If the Parliament did not approve the extension of the President’s Rule after six months of such imposition. In such a case, it gets automatically revoked.

Laws in India to manage COVID-19 outbreak

The Government of India is managing and controlling the spread of pandemic through the provisions of the Epidemic Act, 1897 which confers special powers to tackle the outbreak and spread of epidemics, and the Disaster Management Act, 2005 which provides the legal framework to the government through which restrictions on movement can be imposed, action against rumour-mongering can be instituted and funds to deal with such emergencies can be arranged. This Act ordinarily covers mishaps like earthquakes, tsunami, floods, or other natural calamities rather than including any disease. But on 14th March 2020, the corona pandemic was brought under the ambit of the Disaster Management Act, 2005 by declaring it as a “notified disaster”. The National Disaster Management Authority (NDMA) is the central agency responsible to supervise and regulate disaster management in the country under this Act.

Constitutionality of demands for the President’s Rule during COVID-19

The Central Advisory issued by the Central government as per the Epidemic Diseases Act, 1897 is to be seen as ‘directions’ by the Union Government to the State Government according to Article 256 of the Constitution of India. And as per Article 256, the state government must exercise its executive powers to comply with the laws made by the Parliament as well as the directions issued by the Union government. Article 257 of the Constitution prescribes that the state should exhibit its executive powers in such a manner that no negative impact of prejudice is caused to the Union government while exercising its powers and even offers the power over the Union government to give any directions to ensure the same.

If the states do not comply with these directions issued by the Centre to deal with the COVID-19 pandemic which has taken a toll physically, monetarily, emotionally on humans, then the central government is justified to invoke the President’s Rule in the state as non-compliance to such orders can lead to grave consequences.

To impose president rule in any state, the situation in terms of gravity and magnitude of the issues should be far more serious. It should be evident that the state is unable to deal with the situation and thus, the President has to step in to administer the state. The most imperative factor that is to be kept in mind is that there must not be a single factor that leads to such a grave situation of public disorder and distress, but all the factors and circumstances should be studied together to achieve a decision.

Moreover, as per the report of the Sarkaria Commission, the failure of constitutional machinery can be caused by ‘physical breakdown’ also. The physical breakdown can be caused due to natural calamities, epidemics, or disasters, because of which the state government paralyzes and is unable to exercise its powers.

If we consider the situation of Maharashtra during this pandemic, the NCP-led government was not able to take adequate steps to prevent this situation and prevent further casualties. The guidelines laid down by the centre regarding the imposition of the lockdown, arrangements of PPE kits, medicines, etc were not met by the state. And this situation could be seen as not following the Centre’s orders to its letter and spirit, and thus if the president’s rule is imposed in such a case, based on the report of the Governor, it would have been justified and it could not be regarded as an unconstitutional or arbitrary decision. Here, the question involved is regarding the safety of lives of thousands of people, because non-compliance with the orders of government would directly endanger human life and thus president’s rule can be invoked in the interest of the public at large. Moreover, since the guidelines are not met by the state government, it could be concluded that the state government is not working according to the constitutional machinery. 

No doubt, there have been several instances in the past where the provisions of Article 356 were misused by the Central Government to gain control over the state where the central government was not in power. In 1954, Jawahar Lal Nehru dissolved Andhra Pradesh’s Government, dismissed the EMS Namboodiripad-led Communist government in Kerala in July 1959, etc. Similarly, it was done by the Janata Party when it came to power. There are at least 21 instances during the period 1975-1979 that can be considered as examples of the misuse of the President’s Rule in India.

But since the passing of the landmark judgment of SR Bommai vs. Union of India by the Honourable Supreme Court of India in the year 1994, it has been made clear that this provision should be used sparingly; only in unusual circumstances, when no other alternative is catering to the need, and with extra caution. The power to impose President rule is restricted and is no longer an arbitrary power. In this case, it was held that the:

  • The power of the President to suspend state government by imposing President Rule is not absolute.
  • The proclamation of President Rule is subjected to the approval of both the houses (Lok Sabha and Rajya Sabha).
  • The President can only suspend the legislative Assembly of the state till the time the Parliament is deliberating over the approval of the proclamation.
  • If the Parliament does not approve it, the proclamation lapses after two months.
  • Moreover, the Presidential proclamation under Article 356 can be brought under the ambit of judicial review.

Thus, the unconstitutional proclamation by the President almost came to an end because several measures to safeguard the interest of the state were laid down in this judgment.

Situations in which President’s Rule during COVID-19 pandemic can be called unconstitutional

If President Rule is imposed based on the incompetency and total failure of the State to tackle the exacerbating situation during Covid, it could be held constitutionally valid. President’s Rule in the name of COVID-19 will be considered unconstitutional in the following cases:

  • If the State Government is not given adequate chances to employ different measures and strategies to curb the spread of the virus.
  • If the President on the report of the governor ordered the imposition of the President’s Rule in haste and did not consider and analyze the whole situation.
  • If invoked only to strike down the government belonging to a rival party and there was no breakdown of machinery.
  • If the rationale behind imposing the president’s rule is to provide ‘good governance’ in the state, due to the current government not being able to fulfil the parameters of good governance. This cannot be considered a reasonable justification for the breakdown of state administration as held in the SR Bommai case, and thus imposing President’s Rule in such cases would not be justified.
  • The fact pointed out by the Sarkaria Commission, that there could be some cases where the power administered by the officials of the state may not comply with the Constitution strictly. In such cases, the breach could not be taken as a failure of state machinery. Because if such a principle is followed every state will be under President Rule.

Conclusion

The demand for President Rule in the name of the COVID-19 pandemic is not at all unconstitutional if the President opines that there exist enough reasons to impose the President’s Rule in the state. The situation of the state should be such that even after employing all measures, the state government is not able to contain the situation. The fact that the state is not adhering to the guidelines of the state despite failing miserably while tackling the situation can also justify the imposition of President’s Rule. Article 356 can only be instituted in situations of grave necessity and cannot be used as a political tool by political leaders. The phrase ‘failure of constitutional machinery’ is not defined in the Constitution, but the report of the Sarkaria Commission includes such calamities or epidemics also if they disrupt the functioning of the state. Thus, if the President is so satisfied delving over all the circumstances, the proclamation of the president’s rule will be relevant. The only thing that is to be kept in mind is the imposition should be the last resort, not a first choice. 

References


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