Article 356 of the constitution – dealing with provisions in case of failure of constitutional machinery in a state – begins under sub-clause (1) as follows:
“If the President, on receipt of report from the Governor of the 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 President may by proclamation, assume to himself…” [emphasis mine]
The key word here is “otherwise”, which has been left undefined. Can the word “otherwise” include the finding or observations of a high court or the Supreme Court?
In the absence of the Governor’s report recommending President’s rule, the President can rely on any other material to arrive at the conclusion that the constitutional machinery in a state has collapsed. While considering the question of material, the Supreme Court had held that it is not the personal whim, wish, view or opinion or the ipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose.
In other words, as the apex court had held, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. The apex court had qualified this by saying that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from the material is certainly open to judicial review.
In Rameshwar Prasad v Union of India, the apex court in a 3:2 decision had held that the dissolution of the Bihar legislative assembly in 2005 by the President on the basis of Governor Buta Singh’s report, which recommended dissolution on extraneous considerations, was unconstitutional. As the assembly election had resulted in a fractured mandate, the governor said a flurry of defections and disqualifications could follow. The apex court held that it is for the Speaker to decide about the possible disqualification of members, if they violate the Anti-Defection Act.
While judicial review of constitutionality of the imposition of President’s rule in a state generally arises after the executive exercises its prerogative and after subsequent parliamentary scrutiny, courts generally feel free to pass strictures against a government, if the facts in a given case before it warrant it.
The Andhra Pradesh high court. Photo: IM3847/CC BY-SA 4.0
Viewed from this perspective, merely asking the government’s counsel to come prepared to answer why the court cannot record a finding on the breakdown of constitutional machinery in the state – as the Andhra Pradesh high court did on October 1 – need not lead to the inference that it would have resulted in the imposition of the President’s rule.
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The court’s finding on the breakdown of constitutional machinery may have to be considered, if at all, as relevant material by the Centre to enable the President to satisfy himself from sources other than the Governor’s report, as meant by the word, “otherwise” in Article 356(1). The Union Council of Ministers and the President may still disagree with such a finding of a court, as it is not binding on the government.
Last Friday, the Supreme Court stayed the Andhra Pradesh high court’s October 1 order seeking Y.S. Jaganmohan Reddy government’s response on whether there is a situation of “constitutional breakdown” in the state. The bench comprising the Chief Justice of India, S.A. Bobde, and Justices A.S. Bopanna and V. Ramasubramanian called the high court order “disturbing”, before staying it.
Bar and Bench reported the Supreme Court bench observing thus: “In any case, have you seen an order like this? As an apex court, we find it disturbing.” In 2007, the Supreme Court’s two-judge bench made a similar observation in a pending case, although it did not make it a part of its order.
The high court order
The Andhra Pradesh high court bench comprising Rakesh Kumar and J. Uma Devi had passed the order in a habeas corpus case on October 1. The case, Reddi Govinda Rao, S/o Reddy Akku Naidu v The State of Andhra Pradesh and others was clubbed with 16 similar habeas corpus petitions alleging police excesses.
While hearing this case, the high court bench directed that “on the next date, learned senior counsel appearing on 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”.
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The state government filed an interlocutory application before the bench to recall the order. Declining the prayer to recall the order, the bench observed on December 14:
“Since on number of occasions, the court had noticed illegal picking up of persons by police and after filing of the Habeas Corpus writ petitions either they were being remanded or released. Even in this petition (Reddi Govinda Rao), after noticing such atrocities, this Court, on 12.02.2020, had summoned the Director General of Police, Andhra Pradesh, who appeared on 14.2.2020. Assurance was given by the DGP for educating police officers to act in terms of guidelines issued by the Hon’ble Supreme Court in D.K.Basu v State of West Bengal (AIR 1997 SC 610) and also subsequent amendments in the CrPC. The DGP had assured that he will take proper steps henceforth”.
On March 4, the bench had expressed its shock that the counsel for the petitioner in this case complained that either advocate on record or petitioner/detenu was directly or indirectly being threatened. The bench directed the DGP to ensure proper security to the counsel for the petitioner, and ensure that no such illegal act be repeated.
The bench also noted that after passing these orders, the high court and its judges were attacked on social media by number of persons including one MP, belonging to the party in power.
Andhra Pradesh chief minister Jagan Reddy. Photo: PTI
The bench expressed its surprise that the state government sought recall of its October 1 order rather belatedly on November 21, even though a few hearings had taken place during the interim period. In none of these hearings did the high court hear arguments on whether it could record a finding that constitutional machinery has failed in the state.
The bench held in its order on December 14:
“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.”
The bench reminded the state government that there was no restriction to approach the superior court, but it had participated in the proceedings on a number of dates, and only with a view to drag the present matter has the Interlocutory Application had been filed. The bench, therefore, rejected the state government’s prayer to recall its October 1 order.
Importantly, the bench had no answer to the submission of the state government, that there was no pleading in the writ petition regarding the failure of the constitutional machinery, and therefore, the bench might not examine it, and the court should confine itself to the pleadings and the arguments advanced.
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These aspects of the case tend to weaken the bench’s case that its order was a result of its concern over the alleged police excesses in the state. If the court found prima facie evidence in the petitioners’ allegation that their counsel were threatened by the state and non-state actors for seeking judicial remedy against police excesses, then the proper course would have been to initiate criminal contempt of court proceedings against the police on the ground that administration of justice was being interfered with.
Therefore, there is considerable force in the criticism that the high court’s order was an instance of overreach, and judicial misadventure.
SC’s benchmark and its dilution
On October 1, 2007, the Supreme Court bench of Justices B.N. Aggarwal and P. Sathasivam pulled up the Dravida Munnetra Kazhagam government in Tamil Nadu for going ahead with a state-sponsored bandh in the state over the Sethusamudram issue. “If there is no compliance with our order, it is 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,” the bench was reported as having said.
The AIADMK told the court that that despite the court direction forbidding a bandh – the court passed the order at a rare sitting on Sunday, September 30, 2007 – there was a virtual bandh in the state.
“Is this a government? Is this the Tamil Nadu government? Is this the DMK government, a strong ally of UPA government? If this is the attitude of the DMK government, the UPA government should not feel shy of dismissing it and imposing President’s rule,” the bench was reported as having observed.
Supporters hold up photographs of former DMK chief, the late M. Karunanidhi. Photo: PTI
After blowing hot and cold, the bench agreed to hear the case as one of civil contempt, and at one stage, even threatened to arrest the then chief minister, the late M. Karunanidhi, for not responding to its contempt notice. The contempt case was a damp squib as the bench accepted the Tamil Nadu government’s plea that it did not disobey the restraint order passed by the court and that it had taken all the steps necessary for preventing any disruption of public services and inconvenience to the general public. The bench concluded saying that the business community did not consider it proper to open its shops etc. in the wake of the hunger strike by leaders of political parties.
The Tamil Nadu precedent shows that the threat of extreme action is resorted to by the court just in order to discipline a rogue state government.
The Andhra Pradesh high court might have resorted to the same strategy, following the apex court’s precedent, to make the state government accountable for the alleged police excesses in the multiple habeas corpus cases before it. A sense of exasperation – rather than a serious intent to execute its threat to dismiss the state government – underlines the Supreme Court’s and Andhra Pradesh high court’s interventions in 2007 and 2020 respectively.
The Supreme Court need not consider it as its responsibility to correct every instance of overreach or perceived misadventure by the high courts.
As happened in the Tamil Nadu case, the state governments at the receiving end of the court’s overreach are not without remedy under our federal structure. The Supreme Court’s intervention in such cases may only help to dilute the accountability of the state governments for their omissions and commissions, and the ability of aggrieved citizens to seek justice from the high courts under Article 226 of the constitution, when their civil liberties are at peril, due to police excesses.
Having said that, one cannot miss the irony in the latest intervention by the Supreme Court in the Andhra Pradesh high court matter.
The CJI Bobde is sitting on an explosive letter written by the state chief minister making serious allegations in public against the high court’s attitude to its government in collusion with the Number 2 Judge in the Supreme Court. Whether the high court’s October 1 threat in the course of the hearing of the habeas corpus cases is a result of the chief minister’s public allegations against its judges is not clear.
If the CJI as the administrative head of the judiciary did not find the chief minister’s letter ‘disturbing’ enough to order an immediate probe, his bench’s description of the high court’s October 1 order as ‘disturbing’ may appear to be a disproportionate response.