Justice Markandey Katju-
In my opinion the recent imposition of President’s rule in Maharashtra under Article 356 of the Indian Constitution was unconstitutional, and needs to be declared as such by the Supreme Court.
In the recent elections to the 288 member Maharashtra Legislative Assembly the BJP got 105 seats, the Shiv Sena got 56, NCP got 54, and Congress got 44. Although BJP and Shiv Sena had fought the election in alliance, after the elections the alliance fell apart on the issue of who will be the Chief Minister. No single party got a majority in the House, and no alliance could be formed claiming a majority. Hence the Governor of the state recommended President’s rule, which was imposed.
Now a similar situation had arisen in UP in 1996 where also President’s rule was imposed soon after the Legislative Assembly elections for the same reason viz no party, nor combination of parties, had a majority in the House.
The imposition of President’s rule was challenged in the Allahabad High Court, and a Full Bench of the High Court, of which I was a member, held the imposition unconstitutional, vide H.S.Jain vs Union of India ( see online ).
The reasoning which the Full Bench gave in that case squarely applies to the imposition of President’s rule in Maharashtra too.
What was held by the Full Bench was this: it has been held in the authoritative judgment of the Supreme Court in Bommai’s case, (1994) 3 S.C.C. 1 ( in paragraphs 109, 120, 383 and 391 ) that imposition of President’s rule should not be resorted to unless all other recourses have failed.
In paragraph 112 of my decision in the Full Bench I observed, “The Governor should have sent a message to the House under Article 175(2) of the Constitution, after summoning it under Article 174(1) stating that despite his best efforts he was unable to find out who is the person who can command the confidence of the House, and hence the House itself should inform him about such person. The Governor in this message should have asked the House to assemble and decide within a reasonable period of time about this matter, and then inform him. In this message the Governor could have also warned the House that if it did not make up its mind within a reasonable period of time, the House may have to be dissolved “.
In paragraph 128 of my decision I observed that in a case of a fractured electoral verdict where no party or combination of parties appeared to have a majority in the House, “the only legal alternative left for the Governor is to ask the Assembly to inform him the person in whom it has confidence. Who can be in a better position than the House itself to inform the Governor in whom it has confidence? “.
In paragraph 131 of my verdict I observed ” Although this course of action has not been expressly mentioned in the Constitution, it logically flows out of Article 164(2), and is the only democratic alternative short of dissolution. In today’s era of fractured verdicts, it is the only logical method. ”
I referred to Article 6 of the Japanese Constitution which states, “The Emperor shall appoint a Prime Minister as designated by the Diet” ( the Japanese Parliament is called the Diet ), and observed ” Although we do not have a similar provision in our Constitution, while judicially interpreting it we can borrow from the democratic spirit of the Japanese Constitution “.
Thus, when the Governor of Maharashtra could not find any party or combination of parties which appeared to have a majority in the Assembly, before recommending imposition of President’s rule he should have sent a message to the House under Article 175(2) , after summoning it under Article 174(1), asking the House to assemble, deliberate, and then inform him within a reasonable period of time in whom it has confidence, so that he could be appointed Chief Minister.
In Bommai’s case it was held that imposition of President’s rule was a very serious step, and is a last option, to be resorted to only when all other recourses have failed. In Maharashtra, as in UP in 1996, there was an option left, as referred to above. Hence without resorting to it, recommending imposition of President’s rule straightaway was clearly unconstitutional.
Some people may ask what use such a step would have been when the political leaders were unable to come to a compromise? The answer was given in paragraph 134 of my judgment ” In my opinion if the elected members are permitted to come together and meet in the House, then a Socratic debate may take place, and it is possible that a solution may emerge. When 2 or more persons are sitting separately, they may not be able to resolve their differences, but when they come together it is possible that by discussions and negotiations some compromise may come about. This is the democratic method also. The elected representatives may put pressure on their leaders to give up their intransigent and uncompromising attitude, and adopt a more flexible approach “.
It must be remembered that elections are a costly affair, and frequent elections are a recourse which a poor country like India can ill afford. Also, frequent elections were one of the causes of the collapse of the Weimar Republic and Hitler coming to power in 1933. Hence every effort should be made to avoid them.
If elected representatives are not allowed to meet in the House, should they meet in a tennis court, as happened in France during the French Revolution of 1789?
[Justice Markandey Katju is former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own.]