Federal Polity and Article 356 – the way forward

Political developments in Arunachal Pradesh and Uttarakhand have showed certain disquieting trends in the functioning of our parliamentary democracy that if not checked in due course, would result in making a mockery of our widely recognisable system. Article 356 has proved to be a major impediment in the growth of healthy federal relationship between the union and the states in Indian polity. President rules have been imposed with impunity to settle political scores; office of governors has been misused umpteen times.

In the years of Congress domination, this issue did not generate much controversy but of late, due to a much fractured polity that has witnessed the growth of BJP and regional parties, Article 356 has become a highly combustible issue. It has been a fact that often judiciary has to step into the picture and some of its decisions have not gone down well with the political class. The judiciary has been criticised for exceeding its brief and intruding into the legislative domain on more than one occasion.

The Supreme Court judgement in the SR Bommai case that the strength of the Government must be determined on the Floor of the House and the Assembly should be kept under animated suspension & not dissolved to explore possibilities of government formation has proved to be the landmark in our federal polity. This has curtailed the power of the union governments to impose President rules in recalcitrant states to a great extent but despite this, matters remain unresolved as the suspended animation period has become the most opportune time to indulge in horse trading, bargains and of course, transfer of money. Political stability is affected. It’s high time the political parties sit together to find a durable solution to this vexed issue.

Let’s start with the post of Governor which was supposed to act as the link between the Centre and state in order to strengthen the federal spirit as well as to ensure that states remain within the confines of constitutional parameters while functioning. But there have been numerous occasions when the Governor has tended to act as the agent of the Centre to further the interests of his political masters. The august office has been brought to disrepute as the political parties have awarded this post to their political loyalists; merit or consensus between the centre & the state has never been the consideration.

The nation needs to move away from the era of nominated governors; a national panel needs to be prepared in which eminent people from all walks of life are included after discussion between the ruling party, opposition and other stakeholders. The Governor needs to be appointed from this panel, given a fixed tenure and must not hold office at the pleasure of the President. The process of his removal may be as per the process that is applicable in case of Judges of higher judiciary and if possible, an impeachment provision in state assembly be incorporated. There should be a moratorium on his appointing a political post after relinquishing the post of governor for a significant period.

This measure would insulate the Governor from the prevailing political dynamics and lend an air of credence to the post. In the constitutional scheme of things, the Governor enjoys wider powers than the President due to his discretionary powers in which he/she may not act in accordance with the advice given by the state council of ministers like reservation of a bill for the consideration of the President, recommendation of President’s rule, appointment of a CM in case of no clear majority of any party, dismissal of council of ministers when it can’t prove the confidence of the state legislative assembly etc. The time has come when the discretionary powers under article 163 and 200 & 201 should be curtailed or a mechanism be devised in which Governor is not the sole decision maker.

The recommendations of Sarkaria Commission on Union- State relations like selection of apolitical governor not from the home state & consultation between centre and state over appointment of Governor should also be seriously looked into. The Punchhi commission recommendation of localized emergencies under Article 355 and 356 in affected parts rather than the whole state needs to be explored.

Now let’s come to the position of Speaker who presides over proceedings of the House & lays down the rules, conduct and procedure of the House. Since the Speaker is the referee of the House, it is important that he/she is widely respected and commands the trust of both the ruling party and the opposition. Though the speaker is from the ruling party, he is expected to function in a fair and impartial manner without any right to vote except in case of a tie. Most of the speakers in the Lok Sabha have maintained the highest traditions of neutrality and decorum since the inception of our democracy but the same can’t be said about the speakers of our state legislative assemblies. Their rulings have largely gone in favour of the parties to which they belong and at times, they have used their influence at the behest of the ruling party in case of defections and a possible loss of majority in the House.

No wonder, in this age of coalition governments, every party wants the post of speaker for it because you never take things for guaranteed in an unstable polity and you need the speaker to bail you out of difficult situations. Certain constitutional amendments are needed to give more teeth to the position of Speaker. As per the current situation, the Speaker is a member of the ruling party and need not resign from his membership; the situation is just the reverse in UK where the Speaker must resign from his party after getting elected to the coveted post. This enhances the neutrality of the UK Speaker. India needs to do the same. When the Speaker wants to run for elections in any constituency after completing his tenure, no candidate should be put up against him by any party. This has been the tradition in UK which has shielded the Speaker from criticism in the mother of all democracies.

In UK, when a Speaker wants re-election, he is always re-elected. This may not be possible in India as it is unlikely that the opposition after coming to power would accept the Speaker of the previous Government and the Speaker has been traditionally from the ruling party. If not Speaker, seat of MP has to be the option for the retiring Speakers. In case of a tie on voting on a bill, the speaker must not take sides and simply call for discussion all over again till a final solution is found. In UK, the Speaker can take the help of two senior most members from either sides to decide whether a Bill is a Money Bill or not but the case of India is different. The Speaker is the sole authority to decide on the nature of the Bill and certify it as Money Bill.

It has been seen that speakers generally don’t like the directives emanating from the courts in the performance of their duties. Somnath Chatterjee had famously returned the Supreme Court notice in the Cash for Votes incident in the Lok Sabha in 2006 averring that the apex judiciary had no jurisdiction over the House. In the Uttarakhand case too, the judiciary was accused of issuing inappropriate directives and belittling the prestige of legislature but then, what’s the way out? If the political class fails to find a political solution, there is no alternative apart from judicial intervention, to protect the constitutional ethos & the federal spirit.

Ideally, the legislature and judiciary should respect proper separation of powers between the two organs and must not trespass into each other’s domain but with speakers behaving as ruling party representatives and indulging in unholy constitutional practices, the courts can’t be simply mute spectators. In 2005, the judiciary directed how the proceedings were to be conducted in the Jharkhand assembly and in the Uttarakhand case too, the apex judiciary monitored the Floor test. Of course, these are unwanted intrusions which should have been left at the discretion of Speakers but then, extraordinary situations require out of box solutions. It is to the credit of the judiciary that its interference has only been with regards to the procedural matters and not substantive ones.

When the Speaker decides on the disqualification of members in defection cases, he/she is an adjudicator and acting as a Tribunal; hence his decision is subject to judicial review. This has been the position of the judiciary since one of his judgements pertaining to the decision of a former UP speaker Kesharinath Tripathi in the defection case in the early 2000s. The Speaker is no doubt independent in how he runs the House but then, it can’t be on his whims and fancies.

The Anti Defection Act needs to be made more stringent. If any member switches over his party loyalties, he must give up his membership of the House and contest elections on a fresh ticket. Such members may not be given constitutional positions even on re-election till a prescribed cooling off period passes. Simultaneously, in taking decisions on the disqualification of members under Anti Defection Act, consultation of the speaker with the Election Commission must be made mandatory.
These steps if implemented in letter and spirit would go a long way in restoring a healthy federal polity in the country.

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