The court can limit political partisanship in federal relations by decisively applying neutral constitutional rules in two pending cases pertaining to the removal of Governors
The National Democratic Alliance (NDA) came to power in
2014 with a slim popular mandate that produced a parliamentary majority.
Its manifesto posited: “Power is currently concentrated in Delhi and
the State capitals. We believe this power should be genuinely
decentralised. BJP has stood for greater decentralisation through
devolving of powers to the States.” This decentralisation push has been
enthusiastically portrayed as a commitment to ‘cooperative federalism’
by the government, its media champions and opinion-makers.
The
claim that this government practises a new cooperative federalism runs
up against mounting evidence of the persistence of an older, more venal
political strain in Centre-State relations: partisan federalism.
Political parties mobilise their power in the Central government to
disable and decapitate State governments of opposition parties. Can new
cooperative federalism exist even if this older partisan federalism
persists? Unless the Supreme Court completes its unfinished agenda of
limiting the scope for partisan federalism through the strong
enforcement of neutral constitutional rules on the appointment of
Governors and the exercise of their powers, there is little possibility
that cooperative federalism can define Centre-State relations in India.
Exploiting judicial quiescence
The
Supreme Court is currently adjudicating the constitutional validity of
the imposition of President’s rule in the State of Arunachal Pradesh on
Republic Day, 2016. Before we turn to this case, we must dwell on the
indecisiveness of the court that has precipitated this crisis. Soon
after the NDA government assumed power in May 2014, much like the United
Progressive Alliance (UPA) before it, it sought the resignation of the
Governors of five States (West Bengal, Uttar Pradesh, Chhattisgarh,
Nagaland and Goa), all of whom were appointed by the UPA. Significantly,
the law on the appointment of Governors had changed as the Supreme
Court
in B.P. Singhal v. Union of India
(2010) held that the Governor of a State could only be removed for
reasons which included physical or mental disability, corruption, and
behaviour unbecoming of a high constitutional office, and not at the
pleasure of the Central government. The NDA’s removal of Governors was
challenged in court by one erstwhile Governor, Aziz Qureshi, but the
court has been quiescent on the issue and no orders have been passed.
The
conspicuous lack of urgency in this case emboldened the Centre and
catalysed further Governor removals. On June 1, 2015, J.P. Rajkhowa was
sworn in as the 19th Governor of Arunachal Pradesh, replacing Lt. Gen.
Nirbhay Sharma (retd.). No reasons were cited for Mr. Sharma’s removal,
though reports suggested that the Centre perceived him to be partisan
towards the Congress government. Since his appointment, Mr. Rajkhowa’s
actions as the Governor confirm that such appointments are primarily to
satisfy partisan interests. On December 9, 2015, he decided to not only
advance a session of the Legislative Assembly against the advice of the
Council of Ministers in Arunachal Pradesh but also set its agenda:
discuss the removal of the Speaker of the House. Article 174 of the
Constitution provides that the Governor may “summon the House of the
Legislature of the State to meet at such time and place as he thinks
fit”. However, this power is to be exercised on the advice of the
Council of Ministers, unless it is the first time that the Assembly is
convened after an election and no government is in place. This decision
was challenged by the Speaker, Nabam Rebia, and stayed by the Gauhati
High Court where Justice Hrishikesh Roy lamented that the Governor of a
State, who was expected to discharge his “role with dispassion and
within the constitutional framework”, had “facilitated the political
battle to move in a certain direction in the tussle for power”, and that
this reflected “the non-neutral role of the constitutional head” which
was “undermining the democratic process”.
Grounds beneath the feat
Despite
the High Court’s admonition, Mr. Rajkhowa dispatched a report under
Article 356 of the Constitution recommending President’s rule. While the
report has not been made public, three substantive grounds have been
discussed in media reports: the inability of the ruling government to
hold a Legislative Assembly session within the constitutionally mandated
six months; the government’s lack of support in the House; and the
breakdown of law and order. All three grounds appear to be misconceived.
The
Governor’s decision to advance the Assembly session precipitated a
court order that constrains the liberty of the House to conduct its
proceedings. Second, at least since
S.R. Bommai v. Union of India
(1994), as confirmed in
Rameshwar Prasad v. Union of India
(2005), the floor test is the only constitutionally valid manner of
determining the whether a government enjoys majority support. A floor
test to determine support for the government can only be conducted in a
valid Assembly session which is yet to take place. Hence, no finding of a
loss of support based on the subjective assessment of the Governor is
constitutionally tenable. Third, the court has clarified that the
breakdown of law and order must not be surmised from stray occurrences
in and around the Assembly but be manifest in the inability of the
government to maintain civil order, peace and security. Unless the
Governor’s report includes hitherto undisclosed materials and evidence
that satisfy any of these neutral rules of constitutional law, it would
seem that Mr. Rajkhowa’s assessment of a breakdown of constitutional
machinery in the State is not legally tenable.
In his
1959 Holmes Lecture at the Harvard Law School, Professor Herbert
Wechsler urged judges to develop “neutral principles of constitutional
law that are general in content and equal in applicability”. To be
general in content, constitutional rules must offer reasons beyond the
immediate result in the case. To be equally applicable, the court must
apply these rules irrespective of the party before it. In the complex
field of Centre-State relations, the Supreme Court has developed neutral
constitutional rules that have progressively limited the scope for
political partisanship in federal relations. If the court decisively
applies these neutral rules in the pending decision on the appointment
of Governors in Qureshi and the proclamation of President’s rule in
Arunachal Pradesh, it will significantly advance its unfinished agenda
of limiting partisan federalism. Only when partisan federalism is canned
and put away can cooperative federalism truly emerge.
(Sudhir Krishnaswamy is Director of the School of Policy and
Governance, Azim Premji University, Bengaluru; Gaurav Mukherjee is a
Graduate Fellow there.)
Since his
appointment, J.P. Rajkhowa’s actions as the Governor confirm that such
appointments are primarily to satisfy partisan interests
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