Partial President Rule: "Not To Destabilise Democratically Elected State Government, Only Aimed At What Constitution Truly Provides"

  • Sakshi Shukla
  • 10:22 AM, 28 Jul 2021

This is a crux of the talk delivered by Senior Advocate Chetan Mittal (ASG) on the topic "Understanding Partial President's Rule" organised by Think India Constitutional Law Forum, SIPLA & Lawbeat.

While the discourse began with the kind of Federal Structure India observes, it quickly transcended to establish that a Partial President Rule is permissible, very well within our Constitutional Framework and can be resorted to in the best interest of Nation, State and its people.

Reliance was placed on Section 93, Government of India Act, 1935, Remarks by Dr. Ambedkar in Constituent Assembly Debates and Joint Committee Report on Centre-State Relations.

"By opting for a Partial President Rule, you are not going against the democratically elected State Government, but only restoring what the Constitution truly provides," said the learned Asst. SG in his course of address.

Mr. Mittal, at the outset, drew a distinction between the kind of Federal structure India practices as against what exists in the West.

“It is not coming out of some agreement between the States, as in the case of USA. Our federal structure is different from any other country in the world.”
- Ld. ASG

It is to be understood that while the Russian Federation or the European Union runs on a common consensus of the participating States, India runs on a quasi-federal structure with an inclination towards a Strong Centre.

“Indian federation has not resulted by virtue of instrumentality of agreements with the units – it embodies the indestructibility of the Union,” Learned Asst. SG said citing Dr. Ambedkar.

Placing reliance on the case of State of West Bengal v. Union Of India, (1964) 1 SCR 371, Senior Adv. Mittal read out the following four characteristics of Federalism laid by the Supreme Court back in 1964:

  • A truly federal form of Government envisages an agreement between independent and sovereign units to surrender partially their authority in their common interest and vesting it in a Union.
  • Supremacy of the Constitution which cannot be altered except by the component units – Our Constitution is undoubtedly supreme, but it is liable to be altered by the Union Parliament alone and the units have no power to alter it.
  • Distribution of powers between the Union and the regional units each in its sphere coordinate and independent of the other. 
  • A federal Constitution, by its very nature, consists of checks and balances and must contain provisions for resolving conflicts between the executive and legislative authority of the Union and the regional units.

It will not be out of place to add another finding of the same judgment, wherein it was said,

Exercise of executive authority of the States is largely restricted by diverse Constitutional provisions. The executive power of every State has to be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and not to impede or prejudice the executive power of the Union.”

Interestingly, Dr. Ambedkar on a question asked to him during the Constituent Assembly Debates, deleted the word Federation wherever occurring in the Draft Constitution.

This seems to suggest that the Constitution framers proposed for a Division of powers between the Centre and the States, only to seek Administrative efficiency.

Reliance was further placed on State of NCT v. Union of India, (2018) 8 SCC 501, where the Supreme Court evolved the following three concepts, namely,

  • Collaborative Federalism – Management during Pandemic was cited as an example.
  • Pragmatic Federalism – Example of GST was put forth stating that all States, applying the said approach, sooner or later, adopted GST.
  • Federal Balance – Regulations by the AICTE was taken up stating that in such cases, States cannot completely say that since Education falls under our domain also, we will not accept what the AICTE says.  

Constitutional Provisions – Partial President’s Rule – “When State Cannot Be Carried on In Accordance With the Provisions of the Constitution”

 Article 355: Duty of the Union to protect States against external aggression and internal disturbance

Article 356:  Provisions in case of failure of constitutional machinery in State - 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 be 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 anybody or authority in the State other than the Legislature of the State (indicative of Partial President’s Rule)

Article 365: Effect of failure to comply with, or to give effect to, directions given by the Union – Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold 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 very first article creates a “Constitutional Duty” upon the Union to protect the States against external aggression and internal disturbance, emphasized Mr. Mittal, hinting a possibility/complete scope of Centre’s intervention in the disturbed state of affairs after election results in the State of West Bengal.

Calling SR Bommai, (1994) 3 SCC 1, the Magna Carta of entire controversy, Mr. Mittal referred to the observations by Justice Sawant and Justice Kuldip Singh;

Para 108 of the judgment reads,

“Legally, therefore, it is permissible under Article 356(1), firstly, only to suspend the political executive or anybody or authority in the State and also the Legislature of the State and not to remove or dissolve them. Secondly, it is also permissible for the President to assume only some of the functions of the political executive or of anybody or authority of the State other than the Legislature while neither suspending nor removing them. The fact that some of these exercises have not been resorted to in practice so far, does not militate against the legal position which emerges from the clear language of Article 356(1).” (indicative of partial President’s Rule)

Reference was also made to Article 359A came in 1988 for Punjab – There the president assumed powers for “whole or part of the Punjab”

Applying Discourse to find solutions:

What is happening in State of West Bengal? – Does it call for “Partial President’s Rule”

  1. National Commission of Scheduled Tribes in its 11 page report, says, “The tribal women and young people are the most affected groups in this post-poll violence. The daily labour working in agriculture fields, the petty vegetables and fruit vendors unable to go to the market to sell their goods due to restrictions imposed by local police and fear of physical assaults. Economic conditions of the tribal people have been impacted and found difficult to lead their daily life. The acts such as physical attacks, molestation, rape on women, destruction of household items, etc., left them hopeless and in a state of a pensive mood. In some areas, tribal people are warned not to meet the NCST Team”
  2. On May 9, Calcutta High Court, while constituting a 5-Judge Bench to hear pleas related to post poll violence, said,life and liberty of the people in the State of West Bengal is at stake”
  3. On May 18, Senior Counsel Mahesh Jethmalani informs the Supreme Court that the incidents of violence in the State was “a part of a well thought of political design of the party in power to take political revenge after declaration of results of assembly elections on 2nd May, 2021”
  4. On May 21, a plea was filed before the Supreme Court seeking to constitute SIT to investigate into cases of post poll violence.
  5. On May 24, Women Lawyers across the country including the States of West Bengal, Uttar Pradesh, New Delhi, Gujarat, Kerala, Maharashtra, Madhya Pradesh, Rajasthan, Assam, Andhra Pradesh and Jammu and Kashmir have written a letter to the CJI, drawing attention to the deplorable condition of citizens residing in the State of West Bengal due to post poll violence on 02.05.2021; calls it “Erosion of Rule of Law” and “Institutional Breakdown in the State of West Bengal”
  6. On May 31, Calcutta High Court forms a three member committee for Rehabilitation of Internally displaced victims.
  7. On June 14, A 64-year old woman and a 17-year old minor, filed intervention plea in the Supreme Court seeking investigations into incidents of rape and assault.
  8. On June 18, Justice Indira Banerjee recuses from hearing plea seeking SIT probe into the deaths of BJP Activists.

All the above instances, unequivocally suggest, State of West Bengal is flurrying with an air of threat, disorder and lack of governance. In such deplorable state of affairs, Centre should take a definite call of intervention as Federalism, not only means division of powers between States and Centre, but also implies a Strong Centre.

“The state has suffered for a long time in terms of law and order. People had to vacate villages during the poll. They could not report, which is now coming out due to intervention of the Courts and NHRC. If you are victimizing a particular class of people in a State, majority view cannot prevail in terms of a law and order situation, when it is all done at the behest and support of the State,” rightly said Mr. Mittal while ending his discourse.

An incidental point of non-implementation of Schemes rolled out by the Centre, due to some ideological/political differences, was also made.

In this respect, attention may be drawn to the submissions of Learned SGI, Mr. Mehta, before the Supreme Court in Suo Motu Migrant Crisis matter, where it was informed that the State of West Bengal amongst few others had not implemented “One Nation One Ration Card” Scheme, citing impediments due to AADHAAR. Court had issued directions to implement the same by July 31, 2021.
 

Mr. Mittal is a versatile lawyer with a practice of about 30 years at the Hon’ble Punjab and Haryana High Court at Chandigarh, Hon’ble Supreme Court and other High Courts across India. He holds expertise in diverse fields of law, including, Constitutional Law, Service Law, Real Estate and Economic Offences.

Also Read: [Column] Partial President's Rule in Bengal - The Constitutional Duty of the hour