President's rule only way out in Delhi

Delhi chief minister Arvind Kejriwal and his deputy witnessing party MLAs physically assaulting the chief secretary at the CM’s official residence appears a bizarre story. While the CM and his MLAs deny the entire incident, the CS and the advisor to the CM assert it did happen. The matter is under investigation. Meanwhile, the IAS officers attached to the Delhi government have refused to work till the CM tenders an apology. (The CM could have resorted to such a civilised course had he isolated himself in time from the ugly incident by naming the erring MLAs). Result: the Delhi government is in limbo — the continuing tirades and jibes by the CM and his deputy only add fuel to fire.

The Central government can dismiss the Delhi government by imposing President’s rule but it is desisting from taking such a step as it would present Mr Kejriwal a “victim card” that may sell during the next election though Mr Kejriwal seems to be in a hurry to snatch such a card. So, the question is not whether President’s rule will happen in Delhi, but when will it happen?

It is, therefore, not too early to examine the legal position relating to the imposition of the first-ever President’s rule in Delhi NCT — though the rest of India had it ad-nauseam.

Article 356 of the Constitution says that 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 the Constitution, the President, by proclamation, “may assume to himself, all or any of the functions of the state government”. This is popularly known as the imposition of President’s Rule.

Since 1950, President’s Rule has been imposed 115 times till date in India — Uttarakhand (2016) being the last one. President’s rule was imposed in 12 states in 1977 after the Janata alliance came to power, the record for a single year till date. Second in the list is 1980 when President’s rule was imposed in nine different states after Indira Gandhi came back to power — her score between 1971 and 1977 was 49. Other notable years include 1992 when it was used in six different states.

Almost on all occasions, such proclamations were unsuccessfully challenged before the high courts or the Supreme Court —the consistent view was that a proclamation under Article 356 was outside the purview of courts. The last of such pronouncement by the Supreme Court was in the case of State of Rajasthan vs UOI (1977).

This case arose after the Janata government, headed by Morarji Desai, recommended the dissolution of nine state Assemblies. The justification for imposition of President’s rule was that the governments in these states had lost the confidence of the people as revealed by the results of the March 1977 parliamentary elections.

However, what brought about a revolution in the matter of judicial intervention in the issue of imposition of President’s rule was a ruling by a seven-judge bench of the Supreme Court in Bommai case (1994) that held that matters connected with the President’s decision to invoke Article 356 could be examined by the courts under certain circumstances. And that the court can set aside the proclamation and re-instate a dismissed government in appropriate cases — the case of Uttarakhand is a recent example. The frequency of imposition of President’s rule drastically declined after this case.

The Government of the National Capital Territory of Delhi was created and is governed by Article 239AA. Article 356 is not applicable to Delhi because that provision applies to only “states” and NCT Delhi is not a state. The pending decision of the Supreme Court on the constitutional status of Delhi may be of no consequence to this discussion.

Instead, Article 239AB — enacted along with the creation of NCT Delhi — makes provision for the imposition of President’s rule in Delhi, including for dissolution of the Assembly on the ground that the administration of the NCT Delhi “cannot be carried on in accordance with the provisions of Article 239AA or any law made in pursuance thereof” — in this case the Government of NCT Delhi Act 1991 is the relevant law. In addition, this article gives a blanket power to the President to dismiss a government if “for the proper administration of the NCT, it is necessary or expedient to do so”. This provision is a clear departure from Article 356.

What has been said about the “justiciability” of a proclamation under Article 356 will generally apply to a proclamation under Article 239AB. The difference will be the import and effect of the additional clause permitting dismissal of the government to ensure “the proper administration of the territory”. This clause has not come up for consideration so far. In a majority of cases that have come up before the courts so far, including the Bommai case, the question before the courts was whether the governor’s conclusion that the government has lost the support of the majority of members in the House was tenable or not — it was more a question of arithmetic. Up to and including in the case of Bommai, the governor used to count the heads on his own and often ran into controversy — particularly when the “Aaya Ram-Gaya Ram” practice was in vogue. In the Bommai case the governor, based on an unverified communication allegedly by a few MLAs, recommended dismissal of the government of Karnataka. The Supreme Court then declared that only a test of strength on the floor of the House was legal mode of counting heads.

The pending police investigation would hopefully bring out acceptable proof of assault on the chief secretary. That instance, coupled with the continuing stalemate in the administration, would justify the conclusion that President’s rule alone is the remedy.