Prez rule in states possible when administration fails

HYDERABAD: In the normal circumstances the governor of a state, as the constitutional head, is bound to accept the advice of the Council of Ministers to dissolve the state Assembly.

A chief minister having a majority support can get the Legislative Assembly dissolved as and when he wants. This happened in Andhra Pradesh in 2004, and in Haryana in 2009 when the governor obliged the chief minister to dissolve the Assembly at a time when the situation in the state was seen to be in favour of his party, by the chief minister.

However, on certain occasions, the governor can use his discretion and can refuse to accept the advice of the Council of Ministers to dissolve the Assembly.

The governor can refuse the advice of the chief minister to dissolve the Assembly, if the chief minister having majority puts forth his advice a few days before the beginning of the Budget Session.

In such a situation, the governor will have no alternative but to reject the advice because the acceptance of this advice would mean that the ministry would stay in office till the elections are held without getting the Budget passed and the Budget cannot be passed through an ordinance.

For this reason, the dissolution was not granted to Hitendra Desai in Gujarat in spite of the fact that he claimed the support of 87 members in a House of 163 members.

It is also clear from the language of the Constitution itself which provides that the governor may from time to time dissolve the Assembly.

The use of the expression 'may' in Article 174 (2) shows that the advice of the Council of Ministers is not binding on the governor for the dissolution of the state Assembly. There are many examples where governors refused to accept the advice given by the defeated chief ministers to dissolve the House.

There are many examples in which governor recommended to the Centre for the dissolution of the state Assemblies on the basis that the state government is not being carried on in accordance with the constitutional provisions.

In 1974, the Gujarat Assembly was dissolved following the resignation of the ministry. Though the ministry was in a majority, yet it left office because there was a widespread public agitation against it. In 1976, in Tamil Nadu, DMK ministry was in majority in the House.

The governor sent his report to the Centre that the ministry was charged with maladministration and corruption and recommended for the dissolution of the House. On the basis of the report of the governor, the state Legislature was dissolved.

The Administrative Reforms Commission recommended that when governor has reason to believe that the ministry has ceased to command a majority in the Assembly, he should come to a final conclusion on this question by summoning the Assembly and ascertaining its verdict on

the support enjoyed by the ministry. When the question arises as to whether the Council of Ministers enjoys the confidence of the majority in the Assembly, and the Chief Minister does not advise the Governor to summon the Assembly, the governor may, if he thinks fit, suo motu summon the Assembly for the purpose of obtaining its verdict on the question.

The Sarkaria Commssion said that normally President's Rule in a state under Article 356 (1) should be proclaimed on the basis of the governor's report only. It says the report of governor should be the speaking document containing a precise and clear statement of all material facts and

grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356. The Parliamentary Standing committee accepted this report.

The intention of the founding fathers regarding the operation of Articles dealing with the actual breakdown of constitutional machinery was that the duly elected State Legislature and the popular ministry of the State should have failed in the discharge of their functions in accordance with the rules of parliamentary type of government.

A ministry may not be able to function in accordance with the provisions of the Constitution when its own members have deserted the ministry. However, no clear model rules or causes were laid down in the Constitution for declaring what constitutes failure of a State's machinery.

This Constitutional lacuna has been said to be exploited by the ruling party at the Centre according to its political expediency and that is why a good number of States have come under the President's rule on several occasions.