Wednesday, January 27, 2016

[Editorial # 51] Politics, impropriety and President’s Rule : The Hindu

[Following editorial has been published in The Hindu on 27th January 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer -writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

It is unfortunate that Arunachal Pradesh, a sensitive border State, should find itself in the throes of an artificial constitutional crisis. After seeking some clarifications from the Union government, President Pranab Mukherjee has approved the imposition of Central rule. The proclamation will have to be approved by both Houses of Parliament and the validity of President’s Rule may be considered by the Supreme Court, but it is difficult not to discern a discredited political pattern behind the crisis that led to the current situation. The pattern involves dissidence within the ruling party, the opposition joining hands with the rebels, confusion over the likelihood of a floor test, and the Governor intervening in a partisan manner. It is in similar circumstances that Article 356 of the Constitution has been misused in the past. And it was in such circumstances that the Supreme Court declared in 1994 that the only place for determining whether a Chief Minister has lost or retained majority is the floor of the House. Yet, the country is still witnessing the sad spectacle of partisan politics overshadowing constitutional propriety. It is a poor commentary on the Narendra Modi government that instead of finding ways to facilitate a floor test it has imposed President’s Rule in the midst of an ongoing hearing before a five-member Constitution Bench of the Supreme Court. The Congress in the State is also to blame because, having obviously failed to address the dissidence in its camp against Chief Minister Nabam Tuki, it appears to be avoiding a floor test as it has not sought interim orders to that effect from the court.


Undoubtedly, there is a constitutional impasse because six months have elapsed since the last time the Arunachal Pradesh Assembly met. That itself is a valid ground for Central rule. But it cannot be forgotten that events were manipulated in such a way that the divided legislature never got an opportunity to meet and test the government’s majority. The crisis was precipitated when Governor J.P. Rajkhowa advanced the session scheduled for January 14, 2016 to December 16, 2015, and fixed a motion seeking the removal of the Speaker as the first item on the agenda. In that controversial sitting at a makeshift venue, the Speaker was ‘removed’ and a ‘no-confidence motion’ adopted against the Chief Minister. The Gauhati High Court has ruled that the Governor was justified in advancing the session by acting on his own discretion if he had reason to believe that the Chief Minister and the Speaker were stalling a particular motion. The constitutional question of whether the Governor can summon the legislature on his own and whether he can send a message to the Assembly on what motion it should take up is now before the Supreme Court. An authoritative pronouncement is necessary on this question, but what must not be forgotten is that political processes followed should be rooted in norms of democracy, and not be at the mercy of any discretionary powers of constitutional functionaries.

Question:

1. Write a short note on the history Arunachal Pradesh.

2. What is meant by President's Rule? What are the Constitutional provisions for imposing President's rule?

3. Article 356 of the Constitution is more misused that used? Do you agree? Justify (200 words)

4. What is understood by "floor test" ? Under what circumstances a floor test is done?

5. What is Constitutional Bench of Supreme Court? Why is such a bench constituted? Explain with past examples.

6. Locate Arunachal Pradesh on a map of India. Which countries and states of India share a border with Arunachal Pradesh? Locate the major rivers/lakes/ National Parks/ Wildlife Sanctuaries/Mountain ranges/ Passes in Arunachal Pradesh on a map of India.

7. What is the present constitutional crisis in Arunachal Pradesh? 

8. How is the Speaker of an Assembly elected to and removed from his post?

9. "Political processes followed should be rooted in norms of democracy, and not be at the mercy of any discretionary powers of constitutional functionaries." Explain with suitable examples from the past. (200 words)

16 comments:

  1. Arunachal Pradesh,one of the 29 states of india is located in the northeastern side of india.It is considered to be the largest state of east India.AP shares local border with Aasam and Nagaland,and international borders with Bhutan in west,Burma in east and China in north.and because of these borders AP has always been in limelight.

    Modern history of AP beigns with the inception of british in assam after the treaty of yandaboo concluded in 1826.
    Because of its international borders,in 1913-14 during the simla conference(now shimla),McMahon line was created linking British India and Tibet.
    In 1950,India declared McMahon line to be its boundary.later in 1954,NEFA was established.In 1972,was declared as union territory and renamed as ARunachal Pradesh.In 1987 was constituted as 24th state of Indian Union.

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  2. President's rule is refered in article 356 of the Indian Constitution.
    According to this rule,when a state is not functioning according to the constitution of India then that state comes directly under the supervision of central gvt.
    This rule is practised when:-
    a)the state legislature is unable to appoint a Chief Minister
    b) breakdown of colation
    c) the elections are postponed for unavoidable reasons.

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  3. 1. Write a short note on the history Arunachal Pradesh.
    Prehistoric era: No written records. Tools found at base of Himalayas indicate habitation since atleast 11, 000 years.
    500-600 B.C.: Ruled by Monpa kingdom.
    1826: Treaty of Yandaboo concluded by British giving control over Assam
    Uptil 1858: Northern region controlled by Bhutan and Tibet, other parts under Ahom and Assamese.
    1858: Annexation by the British.
    1913-1914: Drawing of MacMohan Line in pursuance of Shimla. China in disagreement over border between Inner Tibet and Outer Tibet.
    1944: British appointed administrations in areas from Dirang Dzong to Walong.
    Late 1947: Tibet altered claims over Tawang which it had relinquished during Shimla Agreement.
    1949: Situation developed as India had gained Independence and China did so in 1949.
    1950: China poised to take over Tibet, India declared McMohan line as boundary.
    1951: Tibetan administration driven out of Tawang.
    1962: Indo-China War, China occupied almost all of Arunachal Pradesh but then returned to MacMohan Line.
    1972: Arunachal Pradesh was its given current name changing its previous name North Eastern Frontier Province. It became a Union Territory
    1987: Arunachal Pradesh became a State.

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  4. 2. What is meant by President's Rule? What are the Constitutional provisions for imposing President's rule?
    Articles 355, 356 and 357 provide for the imposition of President’s rule in States under certain circumstances. President’s Rule is imposed on the receipt of a report from the Governor of the State satisfying the President 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 has the following powers by Proclamation:
    i) assume all the functions of the State Government.
    ii) Declare that powers of the State Legislature shall be exercised by the Parliament.
    iii) Make provisions to assist in achieving objectives of the Proclamation.
    iv) Revoke any such Proclamation by a future Proclamation.
    v) Each proclamation shall expire within 2 months unless approved by Parliament before expiry.
    vi) Such approved Proclamation ceases to exist after 6 months unless revoked.
    vii) If continuance passed by both Houses, then may be extended for six more months, but not more than 3 years in any case.

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  5. A floor test is the process by a which the Chief Minister of a state and by default his/her Cabinet of Ministers, seeks to prove their majority on the floor of the House. Under Article 356 of the Constitution, a constitutional emergency is declared when the constitutional machinery of a state has ceased to work. This could imply several situations, one of which is the loss of majority support for the incumbent Chief Minster. In such a scenario, when the Governor of the state makes a recommendation for imposing Presidential Rule , the incumbent Chief Minster and his Cabinet are given an opportunity to prove whether or not they have retained majority support of the Legislative Assembly, through a floor vote of the members. Only if such a majority is disproved, can the President then proclaim constitutional emergency, on the basis that the state does not have an effective leader/head.

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  6. A Constitution Bench of the Supreme Court refers to all those benches of the court consisting of at least five or more judges. These benches are constituted for the purpose of deciding cases which involve substantial questions of law that involve interpretation of the Constitution. The provision for such benches are mandated by Article 145(3) of the Indian Constitution. The Chief Justice is entitled to the constituting such a bench and recommending cases to it. Precedent include- the Keshavananda Bharati vs State of Kerala which established Article 368 of the Constitution, included the right of amendment of all parts of the constitution including Fundamental Rights and that Fundamental Rights were not sacrosanct, however any amendment should be in adherence to the Basic Structure of the Constitution. Another precedent of a Constitution Bench is A.K.Gopalan vs State of Madras which was also a significant decision given its analysis of Fundamental Rights and the violation of the Fundamental Freedoms under Articles 19(a-g), due to the imposition of preventive detention. The last prominent precedent is the Ashok Kumar Thakur vs Union of India which was a public interest litigation case, challenging the Mandal Commision report that Other Backward Classes constituted 52% of the Indian population whereas, the National Sample Survey Organization had estimated that the community constituted only 32% of the population.

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  7. 7. The present constitutional crisis in Arunachal Pradesh has been labelled by some as a political conspiracy and others have insisted that it is a genuine case of constitutional breakdown in the State. The facts of the case are as follows :
    a) The State Legislative Asmmebly is constitutionally mandated to meet every six months , or that the time period between two sessions of the assembly should not surpass six months. In this case, six months were allowed to elapse. The Opposition contends that the Assembly session was held outside the premises of the Assembly halls, since entrance was somehow restricted. However the Governor, J.P.Rajkhowa contended that such an assembly meeting was informal and disorganized and was hosted post the extension date of January 21st, which was preponed to December . As a result, the Governor, recommended to the Centre the imposition of President's Rule in the state on the basis that the State government was not functioning in tandem with constitutional norms. However the ruling Congress party led by Nabam Tuki resists this charge and claims that there is no instability in the government and there are no constitutional grounds for the declaration of emergency since the Assembly had indeed met before the mandated date. At the makeshift assembly meeting, a vote of no-confidence had been passed against the Chief Minster and the Speaker and this constituted the rationale for the Governor's recommendation. Another less significant point in the debate, is the unconstitutionality inherent in the personal relationship between the Speaker of the Legislative Assembly and the Chief Minster Nabam Tuki.

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  8. Article 178 of the Indian Constitution provides for the position of a Speaker to preside over the sessions of the Legislative Assembly of a state, similar to Article 93 which provides for a similar post in the Lok Sabha. After every state election, once the Legislative Assembly has been constituted, a Speaker and Deputy speaker are elected by the members of the Assembly from amongst themselves. The Deputy Speaker presides over the House during the absence of the Speaker either due to removal, resignation, death or illness. A Speaker is removed by the members of the Legislative Assembly who may pass a resolution for his removal, with at least 14 days notice. When the removal proceedings of the Speaker are being discussed in the House, the Speaker does not preside over the proceedings.

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  9. The state of Arunachal pradesh is mainly inhabited by people of tribal origin. During the 16th century the state was influenced by the Ahom kings. People of Arunachal Pradesh are of Tibeto-burmese linguistic origin. It was a part of Assam and was taken over by the Britishers in 1826 by the treaty of Yandaboo, which ended the first Anglo-Burmese war. it was then popularly called as North- Eastern frontier agency before 1962. After 162 till 1965 it was controlled by the Ministry of external affairs and later by home affairs through the governor. It became a union territory in 1972 and it was then renamed as Arunachal Pradesh. In 1987 on 0th february it beacame a part of Union of India and was the 24th state of the Union of India.

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  10. What is meant by President's Rule? What are the Constitutional provisions for imposing President's rule?
    part Xviii of the Constitution provides for emergency provisions and one such provision is laid down in Article 356 of the constitution of India which provides for president's rule under the heading Provisions in case of failure of constitutional machinery in States. First of all there has to be a report which is submitted the governor of the concerned state to the President;
    secondly even if there is no report and the president feels that there is a condition wherein the state government cannot function in accordance with the Constituition of India then the President can proclaim:
    1)all the powers vested in state government or governor or any other authority except the legislature.
    2)the powers of state legislature would be excerised by or under the authority of Parliament
    3)any provisons for giving effect to the objects of proclamation, which includes suspension of any provisions of the constitution relating to any body or authority in state.
    But it has t be noted that President cannot assume any power which is vested in the High Court.
    It also provided under this Article that the Proclamation made by the President has to be laid before the Parliament and if it is not approved by both the houses of Parliament then it will cease to operate within Two months after making such proclamation. Now there is a situation wherein the house of people is dissolved or the dissolution takes place within two months then the Proclamation will cease to exist after 30 days when the house of people is reconstituted and the house of people first sits unless approved by the House of people.
    However maximum life of the Proclamation before being approved by the House of people is 6 months and with approval of the house of people maximum 3 years.
    Further maximum life of proclamation as provided for 3 years is provided only when firstly the election commission provides that such emergency is necessary and if the emergency proclaimed is through out India and in the whole or any part of India.

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  11. It was said by one of the Honorable Supreme court of India that had the constitution been interpreted literally the President of India would be the worst form of Dictator.
    The Presidents rule has been imposed more than hundred times in the country which clearly implies that the central government hardly misses any opportunity to Fire this gun by keeping it on the shoulders of President and obviously the target being the state government. there are in herent flaws in the reasons adopted for the proclamation of such emergency.
    It is also not mandatory that there has to be report by governor to proclaim such emergency, if the president feels so he/she can go ahead with the decision and its a known fact that the President acts on the aid of the council of ministers.
    The governor is most often used as a puppet to topple the state government which doesn't align with the objective of central government.
    It is a settled law that the proclamation cannot be claimed just for the reason that the state government is not functioning properly. the reasons for the Proclamation of emergency are listed out in the landmark judgment of SR Bommai v. State of Karnataka and the same can be read to draw the rationality of such proclamation.

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  12. The floor test is basically a mechanism to determine whether the support to the ministry which commanded support in the house has been withdrawn subsequently by some of the legislators to render the ministry incapable of functioning legitimately.
    In the Landmark Judgment of SR Bommai v State of Karnataka it was held that the floor test is mandatory before any proclamation is made under Article 356 and if the governor dispenses from the same he/she has to record the reasons for not complying with the same.

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  13. Article 145 provides for the rules of the court which empowers the Supreme Court to make rules regarding its practice with the approval of the President. Further clause 3 of the same article provides that if a case involves a substantial question of law which also requires interpretation of constitution then the chief justice of India can form a bench of minimum 5 judges including him to be a constitution bench.
    Most of the landmark judgments regarding the interpretation of constitution is delivered by a constitution bench. Examples SR Bommai v. State of Karnataka.
    case of shah bano begum and the recent case of NJAC.

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  14. Arunachal Pradesh shares boundary with
    States- South-Assam
    South-east-Nagaland.
    Country-west-Bhutan
    North-China
    East-Myanmar.
    Major rivers are Brahmaputra and its tributaries (Dibang, Lohit,Kameng,Subansiri,Tirap)
    National Park-Moiling.
    Biosphere reserve-Dihang Dibang, Dibru Saikhawa.
    Tiger reserves- Namdapha.
    Wildlife Sanctuary-pakhui

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  15. Sela pass.Bum la pass.
    Sela Peak, Namcha Beruwa Peak, Kelingon, Dapha Bum, Komdi Mountain,Lulupo.

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