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The SC must end partisan federalism

The court can limit political partisanship in federal relations by decisively applying neutral constitutional rules in two pending cases pertaining to the removal of Governors.

The National Democratic Alliance (NDA) came to power in 2014 with a slim popular mandate that produced a parliamentary majority. Its manifesto posited: “Power is currently concentrated in Delhi and the State capitals. We believe this power should be genuinely decentralised. BJP has stood for greater decentralisation through devolving of powers to the States.” This decentralisation push has been enthusiastically portrayed as a commitment to ‘cooperative federalism’ by the government, its media champions and opinion-makers.

The claim that this government practises a new cooperative federalism runs up against mounting evidence of the persistence of an older, more venal political strain in Centre-State relations: partisan federalism. Political parties mobilise their power in the Central government to disable and decapitate State governments of opposition parties. Can new cooperative federalism exist even if this older partisan federalism persists? Unless the Supreme Court completes its unfinished agenda of limiting the scope for partisan federalism through the strong enforcement of neutral constitutional rules on the appointment of Governors and the exercise of their powers, there is little possibility that cooperative federalism can define Centre-State relations in India.

Exploiting judicial quiescence

The Supreme Court is currently adjudicating the constitutional validity of the imposition of President’s rule in the State of Arunachal Pradesh on Republic Day, 2016. Before we turn to this case, we must dwell on the indecisiveness of the court that has precipitated this crisis. Soon after the NDA government assumed power in May 2014, much like the United Progressive Alliance (UPA) before it, it sought the resignation of the Governors of five States (West Bengal, Uttar Pradesh, Chhattisgarh, Nagaland and Goa), all of whom were appointed by the UPA. Significantly, the law on the appointment of Governors had changed as the Supreme Court in B.P. Singhal v. Union of India (2010) held that the Governor of a State could only be removed for reasons which included physical or mental disability, corruption, and behaviour unbecoming of a high constitutional office, and not at the pleasure of the Central government. The NDA’s removal of Governors was challenged in court by one erstwhile Governor, Aziz Qureshi, but the court has been quiescent on the issue and no orders have been passed.

The conspicuous lack of urgency in this case emboldened the Centre and catalysed further Governor removals. On June 1, 2015, J.P. Rajkhowa was sworn in as the 19th Governor of Arunachal Pradesh, replacing Lt. Gen. Nirbhay Sharma (retd.). No reasons were cited for Mr. Sharma’s removal, though reports suggested that the Centre perceived him to be partisan towards the Congress government. Since his appointment, Mr. Rajkhowa’s actions as the Governor confirm that such appointments are primarily to satisfy partisan interests. On December 9, 2015, he decided to not only advance a session of the Legislative Assembly against the advice of the Council of Ministers in Arunachal Pradesh but also set its agenda: discuss the removal of the Speaker of the House. Article 174 of the Constitution provides that the Governor may “summon the House of the Legislature of the State to meet at such time and place as he thinks fit”. However, this power is to be exercised on the advice of the Council of Ministers, unless it is the first time that the Assembly is convened after an election and no government is in place. This decision was challenged by the Speaker, Nabam Rebia, and stayed by the Gauhati High Court where Justice Hrishikesh Roy lamented that the Governor of a State, who was expected to discharge his “role with dispassion and within the constitutional framework”, had “facilitated the political battle to move in a certain direction in the tussle for power”, and that this reflected “the non-neutral role of the constitutional head” which was “undermining the democratic process”.

Grounds beneath the feat

Despite the High Court’s admonition, Mr. Rajkhowa dispatched a report under Article 356 of the Constitution recommending President’s rule. While the report has not been made public, three substantive grounds have been discussed in media reports: the inability of the ruling government to hold a Legislative Assembly session within the constitutionally mandated six months; the government’s lack of support in the House; and the breakdown of law and order. All three grounds appear to be misconceived.

The Governor’s decision to advance the Assembly session precipitated a court order that constrains the liberty of the House to conduct its proceedings. Second, at least since S.R. Bommai v. Union of India (1994), as confirmed in Rameshwar Prasad v. Union of India (2005), the floor test is the only constitutionally valid manner of determining the whether a government enjoys majority support. A floor test to determine support for the government can only be conducted in a valid Assembly session which is yet to take place. Hence, no finding of a loss of support based on the subjective assessment of the Governor is constitutionally tenable. Third, the court has clarified that the breakdown of law and order must not be surmised from stray occurrences in and around the Assembly but be manifest in the inability of the government to maintain civil order, peace and security. Unless the Governor’s report includes hitherto undisclosed materials and evidence that satisfy any of these neutral rules of constitutional law, it would seem that Mr. Rajkhowa’s assessment of a breakdown of constitutional machinery in the State is not legally tenable.

In his 1959 Holmes Lecture at the Harvard Law School, Professor Herbert Wechsler urged judges to develop “neutral principles of constitutional law that are general in content and equal in applicability”. To be general in content, constitutional rules must offer reasons beyond the immediate result in the case. To be equally applicable, the court must apply these rules irrespective of the party before it. In the complex field of Centre-State relations, the Supreme Court has developed neutral constitutional rules that have progressively limited the scope for political partisanship in federal relations. If the court decisively applies these neutral rules in the pending decision on the appointment of Governors in Qureshi and the proclamation of President’s rule in Arunachal Pradesh, it will significantly advance its unfinished agenda of limiting partisan federalism. Only when partisan federalism is canned and put away can cooperative federalism truly emerge.

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