Emergencies in Indian states: Lessons for Nepal
Jivesh Jha and Anoop Singh Bhakuni
Although his presence is significantly absent in public domain, the Governor is a very interesting appointee in the Republic of India and Nepal. Appearing as a Provincial Head, s/he becomes a part not of the state itself but of the ruling party at the Center. Ironically, Governor’s office becomes the instrument of central control mechanism.
The history is full of incidents in India which project that every government at the Center has deliberately appointed its own party faithful as Governors in the states ruled by opposition parties. The state Governors, at times, have been found using their powers with an intention to dissolve the elected government and State Assemblies to suit the best interest of ruling party at the Center.
Article 155 of Indian Constitution prescribes that the Governor of a State shall be appointed by the President. The succeeding provision (i.e. Article 156) says s/he “shall hold the office during the pleasure of President.” It may be noted that the President of India acts entirely on the aid and advice of Council of Ministers with Prime Minister at the head (Article 74).
Likewise, Article 163 (2) of the Constitution of Nepal envisages that the Governor shall be appointed by the President. Clause 3 of Article 163 mirrors the Indian position. The enactment further provides that the term of office of Provincial Heads shall be of five years, except when s/he is removed by the President of Nepal before the expiry of his/her tenure [Article 163(2)].
The Constitution of Nepal and India mandate that the President performs his/her duties on the aid and advice of Council of Ministers headed by the Prime Minister.
Saga of emergency: 115 times till date
Independent India has witnessed many Chief Ministers of opposition-ruled states crying foul over “misuse” of Constitutional office by Governors to ‘serve the political interest’ of the ruling dispensation at the Center.
To be honest, India really has a menu of bad options here (on the exercise of emergency provisions in state by the President). Interestingly, it’s advisable for Nepal to prevent the similar waters flowing from Kathmandu to Provincial Heads.
In this context, the proclamation of emergency has been a very controversial matter in India since the day Article 356 (dealing with state emergency) was used for the first time by Jawaharlal Nehru government in June 1951 in Punjab. Since then it has been used 115 times till date including in Uttarakhand in March, 2016; reveals an RTI report of the Home Ministry.
Surprisingly, Presidential rule was imposed in nine different states in 1977 after Janata Party alliance came into power succeeding Indira Gandhi-led government. In 1980, Congress again came to power and they gave a benefiting reply to Janata government by dismissing the very nine State governments and imposed proclamation.
“Prime Minister Indira Gandhi tops the chart of Indian prime ministers who imposed the most number of Presidential rules upon states. During her tenure as the Indian PM from 1966-77, and 1980-84, it was imposed for a total of 50 times,” reveals a report of The Indian Express.
However, the exercise of emergency powers becomes very controversial and questionable when a cabinet in a State having majority support in the provincial legislature is dismissed from office for an unobvious reason.
Kerala was the first state to witness this situation in 1959. In 1957, Communist Party came at the helm of power. Within two years, the Communist government started witnessing widespread discontent and the people started agitating on the streets. The government was charged with accusations like transplanting party cells in police, administration and other wings of the government. The prime minister advised the State Ministry to resign and dissolve the House so that fresh polls could be held. But the Ministry remained reluctant to buy the piece of advice.
Accidently, on the receipt of Governor, the Center invoked Article 356; dismissed State Ministry; and dissolved legislature. A new government took office in early 1960 after fresh election. The proclamation of emergency remained in force for around six months.
More so, the President assumed the government of state in Haryana in 1967 on the ground of large scale of defections of members of state assembly from one party to the other. Surprisingly, “defections reached such a farcical level that about 20 members had defected 20 times, six members twice and two members thrice and two members four times,” writes the much-acclaimed commentator of Constitutional Law MP Jain in his popular book Indian Constitutional Law.
In a number of cases, central government intervention took place in the states because of so-called instability of state governments. The Center took over the State administration and carried it through Governor in Punjab (1951), Patiala and East Punjab States Union (PEPSU) (1953), Andhra (1954), Cochin (1956) and Orissa (1961) after witnessing difficulty in Ministry-making, frequent resignation of the existing Ministry, defection of leaders on the floor of legislature, and a minimal scope for a viable Ministry in sight.
Again in 1966, New Delhi dissolved the State Assembly of Punjab to smoothen the bifurcation process of the State of Punjab into states of Punjab and Haryana. Similarly, Rajasthan too witnessed the same fate in 1967 because of difficulty in Ministry-making.
“In 1968, due to instability of coalition Ministries, the UP legislature was first suspended and later dissolved. And, in the same year, Bihar and Punjab legislature were also dissolved under Article 356 owing to Ministerial crisis,” writes MP Jain.
In 1974, Gujarat Assembly was dissolved following Cabinet resignation. In 1975 and 1976, the states of UP and Gujarat, respectively, too witnessed similar destiny. Shockingly, Tamil Nadu legislature was dissolved in 1976 as Governor reported the Center with the charge of corruption, maladministration and misuse of power. Not only that, a high powered Commission was installed on the recommendation of the Governor by the Center to enquire into the alleged corruption charges.
A very dramatic incident of State Emergency occurred in 1977.
“In the General Election held for Lok Sabha in 1977, after the revocation of emergency imposed in 1975, people gave vent to their anger against the imposition of emergency. This led to landslide victory of Janata Party which formed the Central Government. The Congress party was badly routed. There were at the time nine Congress Party-ruled States. The Janata Government at the Center invoked Article 356 in April 1977 and dismissed the nine State Governments, dissolved the State Assemblies and held the fresh election thereto,” writes MP Jain in his book.
Ironically, history repeated itself in 1980 with the formation of Congress government again at the Center. Now the Congress government took a plea that the existing Janata Party-led State Government did no longer reflect wishes of electorates.
Shockingly, media reports claim that Indira Gandhi-led government between 1966 and 1977 activated Article 356 for altogether 39 times in different states in order to gain the title of an “iron-lady” for no good reason.
The high voltage drama of emergency came to floor in the state of UP on December 6, 1992, the date on which the Ram Janam Bhumi-Babri Masjid disputed structure was demolished by the notorious volunteers of the Hindu nationalistic party, Bharatiya Janata Party and its sister organizations. The Central government invoked Article 356 also in BJP-ruled states of Madhya Pradesh, Rajasthan and Himachal Pradesh. This step taken by the Center was supported by all the opposition parties represented in the Parliament.
Recent high voltage drama
In a dramatic move, the Janata Dal (United) in February 2015 expelled Bihar CM Jitan Ram Manjhi from the party and appointed Nitish Kumar as the Chief of the legislative party. Jitan Ram Manjhi appealed to Governor Keshari Nath Tripathi to dissolve the State Assembly on the anticipation of political crisis in the state. The then Governor asked Manjhi to prove majority in the House but Manjhi quit the post on the day of voting and Nitish Kumar took oath of office.
Similar episode continued in March 2016 in Uttarakhand when the Governor reported the President for proclamation without giving opportunity to then CM Harish Rawat to prove confidence in House. Governor’s action was challenged in the Nainital High Court. The Court gave direction for a floor test to prove majority. It is incomprehensible how a floor test could be ordered when the Assembly is put under suspended animation.
In yet another incident in Goa last year, the Congress with NCP had 18 seats in legislative assembly while the BJP was well short of majority with 13 seats. Although Congress was on the driver’s seat to form the government (with just short of three MLAs), still the Governor paved the ways for the formation of a BJP coalition government (with MGP, Goa Forward Party, and three independent MLAs). The issue became hotcake when it came to learn that the incumbent Goa Governor sought advice from Arun Jaitley, the Union Finance Minister, which is constitutionally unsound.
The draftsman of Indian Constitution Dr BR Ambedkar authoritatively and explicitly clarified the CA on December 30, 1948 that in his capacity of head of state in a parliamentary system “the position of governor is exactly the same as the position of the President,” i.e. he is bound by the Chief Minister’s advice. However, at times, the Governors have seen paying no heed to the words of the architects of the Constitution.
Constituent Assembly (CA) debate
The draftsman of Indian Constitution Dr BR Ambedkar authoritatively and explicitly clarified the CA on December 30, 1948 that in his capacity of head of state in a parliamentary system “the position of governor is exactly the same as the position of the President,” i.e. he is bound by the Chief Minister’s advice.
Sardar Patel, one of the members of CA, clarified that Governor’s special power would not put him in conflict with Ministry. The ‘special powers’ will be limited to sending report to the President when a “grave emergency situation arose, threatening menace to peace and tranquility.”
However, at times, the Governors have seen paying no heed to the words of the architects of the Constitution.
Although Dr BR Ambedkar believed that Article 356 would be in reality a “dead letter”, the Courts in India have to arrive with decisions on number of occasions to curb the arbitrary exercise of the President.
The Supreme Court of India by overruling its own decision in State of Rajasthan v. Union of India (1977) held in the case of SR Bommai v. Union of India (1994) that the presidential proclamation under Article 356 is subject to judicial review and that it is not an absolute but a conditional power and that no Assembly can be dissolved before both Houses of parliament ratify the proclamation. The imposition of Presidential rule and dissolution of State Assembly cannot be done together, the SC further held.
In a groundbreaking verdict, the top court in the case of Rameshwar Prasad v. State of Bihar (2006) held that Governor has no power to decide the majority of state legislative Assembly. He is supposed to play a role in forming a government of a party or parties enjoying majority or confidence in House and the deciding place for the matter is only the floor of House, not the Raj Bhawan (Governor’s House).
Lessons for Nepal
The entire appointment procedure gives a safe room for intervention from the PM and his Council of Ministers. Party at the Center appoints Governors without consulting the Chief Ministers and even such decisions often go against their wishes.
“Although there is need to counter-check the democratically elected government, it is not proper to judge a state’s democratic exercise by the other democratically elected government at the Center. Nor should we resort to set a precedent that gives privilege to the party in power at the center over the parties in power in states,” argues Rajeev Ranjan, a faculty member at Legal Philosophy in Uttaranchal University, Dehradun.
He adds “We need to abolish this post. We are not required to carry a spare wheel at the state level. The minor jobs they perform can be done by the President, who in any way is not overloaded like the executives of the Cabinet. If United States does not need a Governor with magic stick to control the states then why does Nepal or India? The office imposes financial burden on states.”
Ranjan has an advice for Nepal. He says, “Kathmandu should learn from New Delhi’s headache of frequent state emergency for no good reasons. Governor’s office is widely contested and of no use in India today. I wonder why Nepal needs seven governors—one each for seven states—at all.”
The satisfaction of the Governor to pave ways for the activation of the proclamation is a very subjective topic. The power of the Governor should be used very sparingly when there is a grave situation of law and order, or there is no reasonable option left with the Governor or there is the failure of Constitutional machinery.
The governor of Nepali states should not act at the whims and fancies of the Central government and the touchstone for the democratically elected government should be the floor test in the State Assembly not in the Governor’s office. Noted, the Presidential rule was imposed in Rajasthan, Karnataka and many other states of India without giving option for floor test in the Assembly.
The authors are LLM (Constitutional Law) students at Uttaranchal University, Dehradun, India.
Published on 9 February 2018
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