A number of instances of improper use have been dealt with in the report. One such case would be relevant in the case of J&K. A situation of maladministration by a government having majority in the assembly cannot be a condition precedent for imposition of Presidents rule. If this were so, there will be many governments which would be liable to be dismissed, but this was not the purpose of Article 356. Similarly, internal disturbance cannot also be a reason for invoking Article 356 as the centre should have exhausted all the measures it could take before thinking in terms of Article 356. Some would say that Gujarat would have qualified for Presidents rule if this criterion was strictly applied. So it is fairly obvious that none of the criteria relevant prior to imposition of Article 356 can be said to apply under the Constitution. The only situation necessitating the imposition of Presidents rule will be if the government commanding a majority in the assembly resigns and there is no other party willing to form a stable government.
A new criterion is implied in the present suggestion in the context of J&K. It is that the state is going for elections. The argument is that if the elected government is in position, the fairness of the elections cannot be established. The serious implications of this approach are not difficult to see. Under the Constitution, the Election Commission is charged with the responsibility of conducting the elections to Parliament and the state assemblies in a fair and impartial manner. It has special powers under the Representation of the People Act to direct the postings of officers in a state and all officials connected with elections come under its direct control. State governments are told not to make any policy announcements a few months prior to elections. With all these safeguards, the talk of imposing Presidents rule prior to elections is a direct affront to the capacity or impartiality of the EC. It can also be interpreted by persons in India and abroad as an admission that, in spite of the best efforts of the EC, the existence of an elected government in the state will be an impediment to the conduct of fair elections. This can have dangerous consequences for the future course of negotiations with Pakistan.
It should also be remembered that Presidents rule merely brings the state government under the President who is expected to act on the advice of the council of ministers at the centre. Effectively, the state is then administered by the party or parties in power at the centre. And if elections are conducted under these circumstances with the EC supervising them, can it be said that they will be more fair than the EC conducting elections with a state government in position In fact with EC as a common factor, the charge of the central government with its major party also contesting the elections, trying to influence the elections will be no more easy to dispel than the charge of the state government doing the same. The other likely argument that the Hurriyat and other parties will be more comfortable contesting the elections under Presidents rule than under the National Conference rule would be more credible if the suggestion had come from those parties and from the constituents of the central ruling group.
The other question that may be asked is, if Article 356 is required to ensure free and fair elections in J&K, why should it not be imposed in all states that go to elections Why was it not done in Tamilnadu last year And will it be imposed in Gujarat prior to elections next year If we say that J&K is an integral part of India, although with certain special treatment under Article 370 of the Constitution, how can special treatment in the context of elections as compared to previous elections be justified Sometime in the late fifties, Rajaji had broached this matter but only in the context of making it a general rule in the interest of free elections; that an elected government should step down prior to elections but as this was not the scheme of the Constitution the idea was not pursued.
The wholesale dissolution of assemblies and imposition of Presidents rule first in 1977 and later in 1980 have been discussed in detail in court judgments and, after the 44th amendment have placed limits on the extent of the use of Article 356. According to the Sarkaria Commission, an overwhelming majority including former governors, ministers, parliamentarians, statesmen and political scientists agreed that the use of Article 356 in 1977 and 1980 was improper. The use of the Article in the context of J&K elections can have the same reaction. The concluding words of Dr Ambedkar while presenting the final draft of the Constitution to the Constituent Assembly in November 1948 would bear repetition; He said: I feel that it (the Constitution) is workable, it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile. One hopes that the news reports about imposition of Presidents rule in J&K do not have any credible basis.
The author was associated with the examination of the scope and use of this provision in the Constitution when he was secretary to the Sarkaria Commission and more recently as a member of the committee on centre-state relations of the Venkatachalaiah Commission. He was also associated, as Adviser to the governor, with the conduct of elections under Presidents rule in Tamilnadu in 1989