CM is duty bound to reply to governor’s quarry

CM is duty bound to reply to governor’s quarry

Subject: Polity

Section: Executive

Context:

• Punjab governor Banwari lal purohit accused the CM Bhagwat mann of not giving proper responses to his queries about corruption and various anomalies in governance, and warned that he could invoke Article 356, which provides for President’s Rule.

Constitutional mandate:

• Article 167 in The Constitution Of India:
• Duties of Chief Minister as respects the furnishing of information to Governor, etc It shall be the duty of the Chief Minister of each State

1. to communicate to the Governor of the State all decisions of the council of Ministers relating to the administration of the affairs of the State and proposals for legislation;
2. to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and
3. if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

• Article 356 of the Indian constitution: Provisions in case of failure of constitutional machinery in State:

1. 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 Proclaim:
2. 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 any body or authority in the State other than the Legislature of the State;
3. declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
4. make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this constitution relating to any body or authority in the State Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts
5. Any such Proclamation may be revoked or varied by a subsequent Proclamation

Does the governor’s power under article 356 come under judicial review?

• The 38th amendment act 1975 made the satisfaction of the President in invoking the Article 356 final and conclusive which could not be challenged in any court on any ground. But this provision was subsequently deleted by the 44 amendment act of 1978 implying that the satisfaction of the President is not beyond judicial review.

Cases of Proper and Improper Use of Article 356:

Based on the report of the Sarkaria Commission on Centre-state Relations (1988), the Supreme Court in Bommai case (1994) enlisted the situations where the exercise of power under Article 356 could be proper or improper.

• Imposition of President’s Rule in a state would be proper, in the following situations:

1. Where after general elections to the assembly, no party secures a majority, that is ‘Hung Assembly’.
2. Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
3. Where a ministry resigns After its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
4. Where the constitutional direction of the Central government is disregarded by the state government.
5. Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
6. Physical breakdown where the government wilfully refuses to discharge its constitutional obligations endangering the security of the state.

• The imposition of President’s Rule in a state would be improper under the following situations:

1. Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
2. Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
3. Where the ruling party enjoys majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980.
4. Internal disturbances not amounting to internal subversion or physical breakdown.
5. Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
6. Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
7. Where the power is used to sort out inter party problems of the ruling party, or for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution.