India is an extraordinary country born under extraordinary circumstances with an extraordinary structure of governance, ergo, leading to extraordinary consequences. The historical legacy of the nation made it one of the most diverse countries in the world. Along with this, our founding fathers were inspired by the partially functioning Government of India Act, 1935 and the modern concept of the 20th century, Federalism. All of these factors paved the path for the adoption of a federal structure of power arrangement in India but what elevated doubts about this extensively admired idea of Federalism was the socio-political conditions prevailing in the nation. This led to debates in the Constituent Assembly where the majority of members did not support the idea of unblemished federalism or the idea of Rights of the States. Even Dr BR Ambedkar favoured the idea of ‘Centralized Federalism’ in India. Thus, we adopted a variation of Federal Structure which left loopholes for manipulation by the Central Government.
Whispers of History
The provision of Presidential Rule or Emergency in colloquial terms, under Article 356 of the Constitution of India is one of the most contentious, undemocratic and non-federal features of the Indian governmental arrangement. During the Constituent Assembly Debates on 4th August 1949, Dr BR Ambedkar argued defending the provisions given under this article and said:
“In regard to the general debate which has taken place in which it has been suggested that these articles (Draft Articles 275 to 280A) are liable to be abused, I may say that 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 expressed by my honourable friend Mr. Gupte yesterday that 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. 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.”
India, somehow, managed to be exactly the opposite of what it’s founding fathers have thought it to be. The article which was supposed to remain as a dead letter in the Constitution, over time, became one of the most misused articles in the history of the Republic of India. It was first used as soon as in 1951 by the government of Jawaharlal Nehru in the state of Punjab. According to an RTI response from the Ministry of Home Affairs (MHA), President’s Rule has been imposed 112 times till 2016. However, the powers of the Centre did not continue unfettered. On the fateful day of 11th March 1994, a Constitutional Bench of nine judges gave judgement in one of the most famous cases of India, popularly known as, the S.R. Bommai case. This judgement restricted the Central Government from arbitrarily dismissing the State Governments. In a layman’s words, it gave the impression that the imposition of President’s Rule shall be open to Judicial Review. This gave us a ray of hope that Indian Judiciary is the saviour of Indian people and would come to our defence on any kind of arbitrary action by the government.
President’s Rule and Judicial Observation
The controversy that arises today is over the question of the powers of the Judiciary. Is the Indian Judiciary the saviour of the Indian Constitution or not? Article 356 (1) of Indian Constitution reads, “If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution…” The word “otherwise” makes this article highly subjective and opens it up for innumerable interpretations regarding what comes under the purview of “otherwise”. Specifically, can observations by the Supreme Court or High Court be regarded as a material to convince the President about the breakdown of Constitutional Machinery?
There were a significant number of Habeas Corpus writ petitions filed in the High Court of Andhra Pradesh regarding excessive use of police force to trouble innocent people and illegal picking up of innocent people by police. On 1st October 2020, clubbing 16 other similar Habeas Corpus petitions in Reddi Govinda Rao v The State of Andhra Pradesh and Ors., a double-judge bench comprising Justice Rakesh Kumar and Justice J. Uma Devi passed a remarkable order. The order of writ petition no. 17209 of 2019 read, “On the next date, learned senior counsel appearing on the behalf of the State may come prepared to assist the Court as to whether in the circumstances, which are prevailing in the state of Andhra Pradesh, the Court can record a finding that there is Constitutional breakdown in the State or not.” From a combined reading of both, the order by the High Court and Article 356 (1), it could be inferred that the High Court stands as the valid institution to observe and submit a report to the President convincing them to impose an Emergency in the state.
The Apex’s Playfield
However, this case is not as simple as it seems. On 14th December 2020, the respondent/State filed an interlocutory application with a prayer to recall the order, dated 1st October 2020, to which the court replied, “The Court is of the opinion that if a party is aggrieved with an order of the Court, it cannot be allowed to question the said order before the same Court… there was no restriction for it to approach the superior Court… We (the Court) are of the opinion that this petition is fit to be rejected and accordingly, the same is rejected.” The court also mentioned in the same order that after passing the judicial orders, social media attacks against the court became rampant, including one Member of Parliament belonging to the party in power. One cannot help but wonder if such activity points out towards the malicious practices going on in the ruling party of Andhra Pradesh.
The State of Andhra Pradesh then approached the Supreme Court and it successfully safeguarded ‘the government’ of AP by staying this matter. Before staying the order by the High Court, the three judges bench comprising CJI S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian called it ‘disturbing.’
These exalted events can be summed up in one statement: The High Court tried to be the saviour of the governed of Andhra Pradesh but the Chief Justice of Supreme Court thinks that such orders are disturbing and becomes the ‘True’ saviour. Well, this statement sounds valid for a person who has blind faith in the Supreme Court , scarcity of factual information and incapability of intellectual reasoning, who would try not to pose a doubt as to whom SC is trying to save?
In the year 1997, Patna High Court observed, in Samyukta Nagarik Case, that even the High Court can prove to be a competent authority to report to the President regarding constitutional breakdown and recommend President’s Rule in the state. Similar impressions were given by the Supreme Court of India itself on the Sethusamudram issue. In an order dated 1st October 2007, a double-judges bench of Justice B.N. Aggarwal and P. Sathasivam stated that “If there is no compliance with our order, it is a complete breakdown of constitutional machinery. If this is the condition, we might then have to direct the government to impose President’s rule in the state.”
This instance of conflict between the High Court of Andhra Pradesh and the Supreme Court of India seems like a dark-comedy thriller movie where the Chief Justice of India, S.A. Bobde is sitting on an open letter by Chief Minister of Andhra Pradesh, Jagan Mohan Reddy, where he is making serious allegations on Justice N.V. Ramana, who is supposed to be the next Chief Justice of India in April 2021. Why the CJI has not issued an order regarding the probe in this matter is yet again an ignored issue.
Such a decision, in the case of Reddi Govinda Rao, directly or indirectly smashes down any scope of strengthening the ‘independent’ justice delivering institutions of India, comprising brains nurtured in the light of The Constitution of India itself, and leaves such critical matters of democracy open to political tactics. The Executive and Legislative branches of the government have an overlap of power and thence when one’s existence depends on the other, not much could be expected from either of them, but, Indian Constitution provides for independent Judiciary and when the “Safeguarder” isn’t safeguarded, it certainly gets influenced by external political forces and we witness is the nightmare.
This leaves us with a rhetorical question with no clear answer: Why is the Supreme afraid of making a pillar of democracy capable to resurrect the dream of “Dead-Letter?”
Nishant Kumar firstname.lastname@example.org
The featured image first appeared on The New Indian Express on 30 November, 2019.