Editorial Notes

[Editorial Notes] The reorganization of J&K under the cover of President’s Rule

Under the Constitution (Application to Jammu and Kashmir) Order of August 5th, 2019, Article 370 became inoperative and reorganized J&K into two Union Territories (UTs).
By IASToppers
August 27, 2019

Content

  • Background
  • President’s rule?
  • Procedure for J&K reorganization undertaken by the Centre under President’s rule
  • Are there any legal limitations on the substitution of State powers with the Centre?
  • powers under President’s Rule?
  • Adverse implications while a State is under Central rule
  • Responsibilities that should not be discharged by the Centre under President’s rule in case of J&K?
  • Limitations on the Centre under Article 356
  • How the Centre can misuse the power of article 356?
  • Conclusion

The reorganization of J&K under the cover of President’s Rule

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Background:

  • The President’s rule was imposed on J&K on 18 December 2018. On August 5 2019, the reorganization of J&K comes into effect through an order passed by the President.

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The task was not achieved by the order alone as the Centre and Parliament make sure that J&K remains under the President’s Rule while passing the order on August 5.

Whether there any limitations on the Centre or Parliament while using prevalence of President’s rule?

  • Under Article 356 of the Constitution of India, in the event that a state government is unable to function according to constitutional provisions, the Central government can take direct control of the state machinery.
  • President can also suspend part the operation of any provisions of Constitution relating to any authority in the State.
  • One such suspension is under Article 3 which says that President must refer any proposal to alter a state’s name or boundaries to the state legislature for its views and opinions.
  • In respect of J&K, there is additional provisional which states that J&K’s legislature has to give its consent to any boundary or size or name alterations.
  • The Presidential proclamation of abrogation of Article 370 suspends the second proviso too.

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Procedure for J&K reorganization undertaken by the Centre under President’s rule

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  1. The issuance of Order of 2019 superseded the Order of 1954 with ‘the state’s concurrence’ which says that ‘Constituent Assembly of J&K’ is to be read as ‘Legislative Assembly’.
  2. The passage of a statutory resolution in Parliament recommending the declaration of Article 370 as inoperative.
  3. The adoption of a resolution accepting the J&K Reorganisation Bill, 2019.
  4. The issuance of notification by the President on August 6 midnight, declaring Article 370 as inoperative.
  • All these were made legally possible only because the J&K was under President’s Rule and the President’s Proclamation under Article 356 provided for it.
  • The legal fiction behind this power of order is that whatever Parliament or the President does in respect of J&K, it is the state government that is doing it.

Are there any legal limitations on the substitution of State powers with the Centre’ powers under President’s Rule?

  • A president proclamation under Article 356 is subject to judicial review (SR Bommai V/s Union of India, 1994).

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  • However, in the same case, the court said that the scope of judicial intervention by president is limited to the adequacy and relevance of the material. (proof that governance of State cannot be carried on in accordance with the Constitution).
  • Moreover, the initial exercise of the power is limited to taking over the executive and legislative functions without dissolving the Assembly. The Assembly can be dissolved after Parliament approval.
  • The courts have always emphasized that states remain supreme, in their limited domain, even though Indian Constitution is weighted in favour of the Centre.
  • There are certain functions that the states can alone do. Now, if these functions are allowed to be performed by the Centre (under Article 356) instead of the state government then the concept of states being supreme in their domain is destroyed.
  • The Centre may issue an order or enact laws that fundamentally alter the state’s policies and programmes.
  • This is permissible under Article 356 where President assume to himself all or any functions of the state government and Parliament may perform the functions of the State Legislature. But the President shall not assume any power vested in the state high court, which poses a real danger to the will of the people of a State.

Adverse implications while a State is under Central rule

  • Suits instituted by the State against other states or the Centre under Article 131 may be withdrawn or claims against it conceded.
  • The power of a State Assembly to ratify Constitution amendments may be exercised by Parliament.
  • The Assembly may be denied the opportunity to give its views on a proposal to alter the boundaries of the State. For example, the consent of the J&K legislature was mandatory, but the state assembly consent was given by Parliament itself.

Responsibilities that should not be discharged by the Centre under President’s rule in case of J&K

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  • The power of the J&K government to accept or concur with proposals to modify how provisions of the Constitution apply to the state.
  • The recommendations of the state ‘Constituent assembly’ to the President to declare Article 370 inoperative.
  • The above measures have been adopted by the Centre in the name of the Governor.
  • The above powers are powers exercisable by elected regimes, and not by the Centre discharging its emergency powers.

Limitations on the Centre under Article 356

  • The power under article 356 is invoked only to restore constitutional governance in the state and to exercise absolute powers to change policies, laws and programmes of the state.
  • Article 356 does not give a blanket power to the President or Parliament to alter any matter in which the political leaders and the electorate of the State have a legitimate stake.

How the Centre can misuse the power of article 356?

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  • If the Centre finds that it does not have the requisite number of State Assembly resolutions ratifying a Constitution amendment, it can pass the amendment with a two-thirds majority in both Houses of Parliament, ignoring the disapproval of few state governments.
  • This may happen in other ways too. State law may be amended by Parliament during President’s rule and thereafter, the subject it falls under may be shifted to the Union or Concurrent List through a Constitution amendment.
  • That amendment may be ratified on behalf of several state governments by placing them under President’s Rule for a limited period.
  • This route may be used to abrogate any state law, and thereafter future elected regimes in the state may be prevented from restoring its old law, by stripping it of its legislative competence.

Conclusion

  • Anyone challenging the constitutionality of the President’s Constitutional Order and the declaration of article 370 as inoperative, will also have to seek a verdict that imposes judicial limitations on the extent to which article 356 can be used to undermine the will of the states.

IT’s Input

What is President’s Rule in the Indian context?

  • The imposition of Article 356 of the Constitution on a State following the failure of constitutional machinery is called President’s Rule in India.

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  • Once the President’s Rule has been imposed on a state, the elected state government will be temporarily dissolved, and the Governor, who is appointed by the government at the Centre, will replace the Chief Minister as the chief executive of the State.
  • The state will fall under the direct control of the Union government, and the Governor will continue to be head the proceedings, representing the President of India.
  • Article 356 is inspired by sections 93 of the Government of India Act, 1935, which provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance with the provisions of the said Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion.
  • The imposition of the President’s rule requires the sanction of both the houses of Parliament. If approved, it can go on for a period of six months.
  • However, the imposition cannot be extended for more than three years, and needs to be brought before the two houses every six months for approval.

When can President’s Rule be imposed on a state?

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  • State Legislature is unable to elect a leader as Chief Minister
  • Collapse of a Coalition due to disagreements, parting ways within the members
  • Serious breakdown law and order
  • Elections postponed due to ineludible reasons
  • Loss of majority in the state assembly
  • Shoot up of insurgency or rebellion

Criticism

  • Article 356 has been widely criticised for giving provisions for the party/coalition in the Centre to misuse democratic powers for political gains. Dr BR Ambedkar called it ‘the death letter of Indian Constitution’.
  • The rival parties running governments in various states were dissolved by those at the Centre by making use of the Article. The dismissal of the Communist government in Kerala by Jawaharlal Nehru in July 1959, and the 21 instances during the period 1975-1979 are often considered as examples of the misuse of the President’s Rule.

Key Facts

  • Uttar Pradesh is the Indian state upon which the President’s Rule has been imposed for the most number of times.
  • The Governor’s Rule imposed on Jammu and Kashmir for a span of six years (19 January 1990 – 9 October 1996) is the longest one the country has ever witnessed.
  • Chattisgarh and Telangana are the only Indian states that have never slipped to President’s rule.
  • In 1994, the Supreme Court delivered a landmark judgement in the SR Bommai vs Union of India case, introducing certain guidelines to check the unwarranted intrusion of the central government and the imposition of Article 356 for political gains.

 

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