The President of the Indian Republic must now do something that the country’s conscience enjoins and the Constitution and law demand – dismiss the utterly egregious, venal, violent and subversive state government of West Bengal.
For far too long has this carbuncle on the nation’s body politic lasted. It has defied all sedate attempts to cure it and reform its texture. However, it is not an ordinary malaise – it is a virulent pandemic that is threatening to spiral out of control and involve the rest of India in its deadly outreach. The danger from West Bengal is even more life-threatening for India because there are forces on the ship’s bridge that are controlling its death ride and guiding it to the shore where it will disseminate its deadly virus.
That’s enough of medical and nautical parallels in this socio-political analysis and assessment. At this stage, I would like to take the readers on a brief exercise on the subject and discuss the immensely complicated issue of a dismissal by the President of an elected government in a particular State of the Indian Union and imposition of President’s Rule in that affected State.
Part XI of our Constitution governs the relations between the Union and the States. Chapter I (comprising Sections 245 to 255) deals with legislative relations while Chapter II (Sections 255 to 263) pertains to administrative relations. This segment of the Constitution is germane for our discussions here, but the key portion of our constitutional framework that we will need to keep in mind is Part XVIII (Emergency Provisions), specifically Article 356, that deals with the “failure of constitutional machinery in States” and the related Article 355 that relates to the duty of the Union to protect States against external aggression and internal disturbance (emphasis mine).
Whenever a State government is unable to function according to constitutional provisions, the Central government can take direct control of the state machinery. Thereafter, executive authority is exercised through the Governor who is appointed by the Centre. He, in turn, has the authority to appoint other administrators to assist him.
The exact wording of Article 356 is as follows:
Provisions in case of failure of constitutional machinery in States
(1) 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 he provisions of this Constitution, the President may by Proclamation –
(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
The general consensus among political scientists and jurists on this extremely intricate and complex issue is that the situation contemplated under Article 356 should be assessed in the following manner. If the President is convinced that the government of a particular State cannot be carried on in accordance with the provisions of this Constitution, the four possible reasons can only be (a) Political crisis (b) Internal subversion (c) Physical break-down in the State’s administrative machinery and (d) Non-compliance with constitutional directions of the Union Government’s Executive.
Readers should note that Article 356 does not speak of any “emergency” of any kind. It is just a proclamation to provide safeguards against the failure of the constitutional machinery in a State or to repair the effects of a breakdown. It can either be a curative or an anticipatory / preventive measure. Dr. Ambedkar, who belonged to an earlier generation, was of the opinion that this provision, would hopefully be “never be called into operation” and that it “would remain a dead letter”. The good jurist and scholar extraordinaire clearly did not have the misfortune of seeing the likes of Mamata Banerjee and her Trinamool Congress in action.
I must also point out that this Article is broadly based on the American precedent: the U.S. Constitution under Article IV (4) enjoins on the United States to guarantee to every State in the Union a “republican form of government”. In the U.S., Federal intervention to the extent of dismissing or putting in cold storage of a State government has never occurred.
However, the Federal Government has intervened in some States where there have been major violations of the American Constitution. For example, President Eisenhower sent the U.S. Army to the State of Arkansas in 1957 to implement civil rights laws pertaining to desegregation of schools. The great Ike went to the extent of sending the famous 101st Airborne Regiment to Little Rock to protect Afro-American students who had enrolled in schools that were earlier meant exclusively for whites.
Eisenhower also ordered that the quasi-military units of the Arkansas National Reserves (which were under state control) should be put under Federal jurisdiction. This is broadly equivalent to transferring control of the Calcutta Police and the West Bengal Police to the Union Government. Readers will easily understand the parallel.
To return to our shores, it must be pointed out that Article 356 had been repeatedly used and misused by successive Congress regimes till the Emergency of 1975. Thereafter, the 44th Constitution Amendment Act negated the misuse of this important provision and brought it under the purview of judicial overview.
As has been mentioned earlier, Article 356 is a supplement to Article 355 which says that “it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution”.
This does not mean that every provision of the Constitution has to be enforced. It is the constitutional system in toto that is sacrosanct. The primary judgement of the country’s apex court on this issue is: Bommai v Union of India (AIR 1994 SC 1918: (1994) 3 SCC1. This is a multi-faceted and complex judgement. The major principles enunciated are broadly the following : (1) the validity of a proclamation under Article 356 can be challenged only on the grounds of legal mala fides or a high degree of irrationality of the decision (2) if the decision is challenged, the Union of India (UOI) must produce the material on the basis of which it was taken (3) the material must be relevant to the decision. Even if some of the material is relevant, the court will not intervene. Neither will it go into the correctness of the material or its adequacy (4) Before asking the UOI to show the material to the court, the court must find a strong prima facie case that the proclamation was unconstitutional and illegal.
According to the eminent jurist Krishnaswami Ayyar, it is the duty of the Union Government to protect the States not only against external and internal aggression but also against “domestic chaos”. The Constitution must function in the proper manner.
Basu in the Shorter Constitution of India (2018) (revised by retired Supreme Court judge A K Patnaik), has an extensive discussion on the “proper” and “improper” grounds for the use of Article 356. It is my considered view that the current situation in West Bengal (WB) falls squarely under the scenarios spelt out in the tome.
A few specific examples may be given here. There is gross mismanagement of the affairs of the State where Article 356 has been invoked. The other scenario is that there is pervasive corruption. Then there is the case of subversion of the Constitution by the State government “while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate the democratic social fabric or to subvert its basic features such as federation or democracy”.
The fourth situation relates to a State administration acting “contrary to the provisions of the Constitution” or using “its powers for purposes not authorised by the Constitution”.
My reasoned opinion is that the that the third and the fourth scenarios are the ones that fit the WB situation very closely. The transgressions and offences of the Mamata regime can be put most appropriately into these boxes. Her deliberate stoking of communal discord and violence, her assiduous encouragement of illegal infiltration of foreigners, her use of party cadres to intimidate political opponents through open violence / intimidation and her flagrant encouragement of corruption in manifold areas of the state’s economy and commerce are so obvious and glaring that there is no question of avoiding Article 356 in WB any longer.
As soon as the election results are announced and if the BJP-NDA regime returns to power, one of their priority tasks should be to rid West Bengal of this scourge of Mamata and TMC. The verdant land of our Bengal and its talented people (who are albeit slow to react to injustice and oppression) should not have to suffer further ignominy. We should remember that those who are capable of evil are also capable of perjury to sustain it.
The ancient Greeks had it down perfectly: “When one with honeyed words but evil mind persuades the mob, great woes befall the state.”
(Euripides, in Orestes)
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Jay Bhattacharjee is an advisor in corporate laws and finance, based in Delhi. His other areas of interest include socio-political issues and military history. He has been a commentator and columnist from the mid-1990s