india

Updated: Nov 13, 2019 03:24 IST

Maharashtra governor Bhagat Singh Koshyari’s recommendation for President’s rule to be imposed in the state has sparked a new debate on the use of Article 356 with experts saying the he had no other option and the Congress insisting that it was an ill-conceived decision.

Article 356 of the Constitution says that “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,” he may proclaim President’s Rule. The Centre has two months’ time, or until February 11 , to ratify the proclamation in both Houses of Parliament if the state remains without an elected government.

Constitutional experts underlined that after the imposition of President’s rule, the doors are still open for the parties—Bharatiya Janata Party, Shiv Sena, Nationalist Congress Party (NCP) and the Congress—to reach pacts to stake claim to form the government in the future.But whether any party’s attempts to poach elected lawmakers to reinforce its own numbers would be permissible under the anti-defection law was a grey area.

“The governor has to be convinced about the stability of the government. He did the right thing in calling the BJP first, then Shiv Sena followed by NCP before sending his report to the President. None of the parties have been able to convince the governor that their combination is in a position to run a people’s government. How long he could have waited? The last assembly had already expired on November 9,” former Supreme Court judge Santosh Hegde said.

TK Vishwanathan, the Constitutional advisor to the President when Pranab Mukherjee was in office, said, “It was for the governor to take the decision. But he has to justify his decision.”

Experts pointed out that in 2005, United Progressive Alliance (UPA)-appointed governor Buta Singh recommended dissolution of the Bihar assembly on suspicion of political horse-trading. The UPA cabinet accepted the decision and in the middle of the night, faxed the proposal for proclamation to President APJ Abdul Kalam in Moscow; Kalam approved it. Later, the Supreme Court reprimanded the governor as his proposal “reeked of malafide intent”.

Congress leader and lawyer Abhishek Manu Singhvi criticised the decision. “Article 356 was conceived by BR Ambedkar in the Constituent Assembly as a last resort in rarest of rare cases. But this governor looked like {he was} determined to impose President’ rule and he mechanically met different parties after the BJP failed to stake claim.”

Singhvi also argued that there was a vast difference between the tally of the BJP and the Shiv Sena and so, the latter should have been given a longer time.

Hegde said another election was not desirable and if the BJP and Sena or NCP, Congress and Shiv Sena can come out with a formulation, the “governor must allow them to form the government and ask for a floor test.”

Hegde and Singhvi admitted that at this juncture, there was no clarity about the application of the anti-defection laws on MLAs who have been elected, but haven’t yet been in sworn in as members of the House. “It is an interesting question. Frankly, Article 10 doesn’t elaborate on such a situation. But according to the SR Bommai judgment, an elected lawmaker would belong to the party that gave him the ticket to contest,” said Hegde. Singhvi added: “It is technically a grey area. But since an MLA has contested on a party ticket he should be considered as a member of that party. However, there is a scope for interpretation.”

Senior Congress leader Kapil Sibal is likely to represent the Shiv Sena in Supreme Court.