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Tuesday, June 6, 2023

Rule of Law : Is there a case for President’s Rule in West Bengal?

Even before the relentless post-poll pogrom unleashed on May 2, 2021, WB has had a history of political massacres since Left party rule. The practise of political killings sadly continues even after the defeat of the Left in 2011.

NCRB’s 2014 report had stated that WB tops in political murders.

The state had recorded 26 political murders in 2013, which is more than 25% of the 101 cases across the country. In 2012, Bengal was at the third position, but claimed its way to the top in the next year.

In January 2017, BJP leader Krishna Bhattacharya’s house was bombed by TMC workers. In the same month, the BJP office in Kolkata was attacked. In June 2018, two BJP workers Trilochan Mahato and Dulal Kumar were found dead under mysterious circumstances:

‘On Saturday, the body of another man was found hanging from a power transmission tower in West Bengal’s Purulia district…”

The incident comes days after the body of another man, Trilochon Mahato (20), who the party said was a member of its youth wing, was found hanging from a tree in Balarampur village of Purulia district.

NCRB’s 2019 report also shows that WB recorded the highest murders in 2019.

The killing of former BJP councillor Manish Shukla in Titagarh area of North 24-Parganas district is the latest in the series of political killings in West Bengal. According to the latest report on crime in India by NCRB, the Trinamool-ruled state has reported the maximum number of political murders in the country.

As per news reports, 13 political killings have been reported in West Bengal till now. The majority of victims of these killings, the BJP claims, have been its cadres.

A BJP MLA and three of its party workers have allegedly died by suicide this year. In all these four cases, including the death of BJP MLA Debendranath Roy, the BJP has accused TMC of targeting its leader and workers. The ruling TMC has attributed these murders to local-level violence and turf war.

However, the figure of 13 dead was not in consonance with MHA figures.

The data are not in consonance with an advisory sent by the Ministry of Home Affairs (MHA) to the West Bengal government last year. In an advisory sent on June 15, the MHA had said political violence in West Bengal had claimed 96 lives and that the “unabated violence” over the years was a matter of deep concern.

The reason cited for lower figures by NCRB was the non-receipt of data from WB for 2019 hence 2018 data was used to arrive at the city-wise figures. NCRB also said they were waiting for clarifications from various states including WB.

In fact, way back in 2019 itself, the RSS had asked for President’s Rule to be imposed in WB owing to the political violence. RSS Delhi unit chief Alok Kumar had said in October 2019: ‘I believe that all those who believe in democracy, inclusiveness, and right to dissent must assert and raise their voice against the continued violence and intimidation in WB,’ in the wake of the horrific murder of RSS worker Bandhu Prakash Pal, his pregnant wife, and minor son in Murshidabad, WB.

After the post-poll violence began on May 2, the Governor and many leaders continue to highlight the breakdown of law and order in the state and appeal for intervention. In May, a plea was filed in the Supreme Court to bring in President’s Rule.

The petition said:

‘Massacre killings of suspected BJP workers/supporters and destruction of their houses/properties have taken place soon after the election result were declared… The remaining workers/supporters of BJP and their families have been left with no other option than to leave their houses/residences and hide themselves to save their lives and limbs. Media reports have further revealed till filing of the instant petition that the incidents of killing of BJP workers and destruction of their properties by the people of TMC are still going on with complete impunity…’

After nearly two months of incessant violence, an NHRC fact-finding team visited the state and reported that there were at least 15000 cases of post-poll violence and several molestations. Ironically, the NHRC fact-finding team was also not spared and faced an attack.

President’s Rule

Given this background, is the WB situation a fit case for President’s Rule? The Constitution states that it must be used ‘when governance in a state is not in accordance with the provisions of the Constitution due to reasons other than war, external aggression or armed rebellion.’  It is to be put into force where the ‘Constitutional machinery has failed.’

For states, President’s Rule is imposed using Article 356 while for different Union Territories (UTs) it is imposed using different Articles such as Article 239AB of the Constitution for Delhi, for Puducherry Section 51 of the Government of Union Territories Act, 1963 , and Section 73 Jammu and Kashmir Reorganization Act, 2019 for J & K.

Its imposition means that the state legislature is suspended / dissolved and the state is administered by the President through the Governor. It does not in any way affect the Fundamental Rights of citizens.

The Parliament (the centre) takes over the executive and legislative functions. The Parliament can delegate law making powers to the President. The President often makes laws in consultation with MPs from the state.

Imposing President’s Rule requires a simple majority of Parliament and extending it requires the same. The maximum period it is permitted to continue is three years although the history of its use in Bharat shows many exceptions to this rule. The Parliament is not authorized to revoke it but only the President can do so, using his own discretion.

Some interesting facts about President’s Rule in Bharat

Other than Telangana and Chhatisgarh, all states have experienced President’s Rule including newly formed states like Uttarakhand and Jharkhand.

Of these, many states had President’s Rule several times. Manipur had it 10 times; UP 9 times; Bihar, J&K state, and Punjab 8 times each; Puducherry 7 times; Karnataka and Odisha 6 times each; and Goa and Gujarat 5 times each.  Assam, Kerala, Nagaland, Rajasthan, Tamil Nadu, and WB had President’s Rule 4 times each.

Interestingly, despite its history of political murders from the onset of Left rule, the four times that WB faced President’s Rule was due to fall of government thrice and death of a Chief Minister once, but never for political murders.

Some older states that were formed after independence like Andhra State, Patiala and East Punjab States Union, Travancore Cochin, and Vindhya Pradesh also experienced President’s Rule.

In Bharat, it was imposed for the very first time by Nehru in June 1951 in Punjab for 302 days, when the Gopichand Bhargava ministry was removed even though it enjoyed a majority. The purpose was to help the state Congress to get its act together. Thus, in its very first application, it was misused.

Its most recent usage has been in J&K after it was declared a UT post the 370 abrogation. It was applied this year in Puducherry for 71 days due to the loss of majority in the State Assembly. In 2016, it was applied twice in Uttarakhand for a short duration due to fall of the state government, in Delhi in 2015 for almost a year due to resignation of the CM, and in Maharashtra  in September/October 2014 due to split in the coalition government.

The maximum duration of President’s Rule was in Punjab between 1987 and 1992 which continued for 4 years and 259 days. The reason was the insurgency in Punjab. Puducherry had President’s rule for 3 years and 96 days between 1974 and 1977 due to fall of the coalition government.

UPA and President’s Rule: UPA imposed it in Bihar in November 2005 for 272 days due to inconclusive election results but the Supreme Court ruled against it calling it unconstitutional and mala fide and asking that elected legislators be given a chance to form the government. UPA imposed it on Karnataka twice due to loss of majority in 2007 and 2008. In Nagaland, UPA imposed it for two months in 2008 after a controversial confidence vote and dismissal of the government. UPA imposed it thrice in Jharkhand: in 2009 for almost a year, in 2010 for around 4 months, and in 2013 for a few months due to loss of majority and fall of the coalition government.

President’s Rule was imposed the maximum number of times by Indira Gandhi. In her tenure between 1966 and 1977, her government imposed President’s rule 39 times in different states. During her second tenure from 1980 to 1984, President’s Rule was imposed 11 times. Overall, she imposed President’s Rule 50 times.

Misuse of President’s Rule was curtailed only after the Supreme Court established strict guidelines for imposing it in its ruling on the S. R. Bommai v. Union of India case in 1994. The judgement maintained that in a multi-party political system, political parties in the centre and state can be different and Article 356 cannot be use by the centre for political upmanship. Although the sufficiency or otherwise of the material provided to the President to decide on proclaiming President’s Rule cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review.”

Due to the history of repeated misuse in the past causing judicial intervention to come into play, Article 356 is considered controversial, leading to hesitancy in using it even for genuine cases. With courts having the right to intervene, there are obstacles to its application.

Many therefore suggest that Article 355 be used instead, which states that it is the ‘duty of the Union to protect states against external aggression and internal disturbance and to ensure that the government of each state is carried out in accordance with the provisions of the Constitution.’ WB topping in the number of political killings for the last few years and the aggravated situation since May 2, 2021 both suggest that Article 355 may apply.

Some suggest that Article 365 too can be applied in the case of WB. The Article can be used ‘Where any State has failed to comply with or to give effect to any directions given in the exercise of the executive power of the Union under any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.’

This article is the third in series of articles on Rule of Law. You can read Part 1 and Part 2 here.

Featured Image Source: dnaindia.com

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