The looming global food crisis and the way out

Global food crises are turning out to be far too frequent to be dismissed any longer as a freakish phenomenon — in much the same way as the extreme and erratic weather patterns associated with global warming. A spike in the prices of agricultural commodities is again looming, threatening a repetition of the 2007-2008 global food crisis when international prices skyrocketed to their highest in 30 years. The International Monetary Fund (IMF)’s food price index rose by over 80 per cent between the start of 2007 and mid 2008. Severe drought in the United States, flooding in several parts of Europe, a massive shortfall of rain in Africa and India are feared to lead to huge loss of output and a scramble for markets and supplies.


Meanwhile, steep prices, high production costs and slow global output for the whole decade have been forecast by the Food and Agriculture Organisation (FAO) and the Organisation for Economic Cooperation and Development (OECD). Agricultural output growth is said to average annually at 1.7 per cent over the next 10 years, down from trend rates of over 2 per cent in recent decades. Moreover, with only a slight increase in farmland area expected in the coming decade (with 25 per cent of all agricultural land degraded), production will have to be raised through enhanced productivity, says the 2012 FAO OECD Agricultural Outlook.


The trigger behind the current episode is believed to be the severe drought in the U.S., the world’s largest exporter of corn, wheat and soybeans. But drought or no drought, at the core of the current crisis is the pressure to convert grains into fuel by diverting corn (maize and other coarse grains) to the manufacture of ethanol. U.S. oil companies are required to dilute gasoline with increasing amounts of biofuels under the renewable energy programme of the Environment Protection Agency (EPA). This year’s target for biofuels production is some 13.2 billion gallons, almost all of which is said to be from corn.


The situation is reminiscent of the 2007-2008 global food crisis when the U.S. and European biofuels policy of subsidies, tax exemptions and incentives for corn-ethanol production was roundly criticised by multilateral agencies. The IMF in particular, pointed to the policy’s detrimental effects on staple food crop output, citing estimates that U.S. corn-ethanol production accounted for 50 per cent of the increase in the global demand for corn in the preceding three years. Now, U.S. grain, meat and dairy lobbies are concerned that in the current extreme heat and sparse rains, a disproportionate diversion of corn could cause a further spike in prices, hurting livestock and poultry feed and the demand for meat. The crippling effects of the U.S. drought, the worst in 50 years, and an impending crop failure could impact world markets in the absence of corrective steps.


Significantly, explanations for the unprecedented escalation in the prices of grains was also sought in the changing food habits of the rising middle classes in the emerging economies of Asia, while volatile international oil and energy markets exacerbated the situation. But there is ample evidence that points to the role of commodity derivatives in destabilising and driving up food prices around the world. This resulted in food prices becoming unaffordable to poor people in the developing world who rely on imports. Not surprisingly, the World Food Programme reported a cash crunch of millions of dollars in its efforts to feed the world’s hungry, even as the crisis sparked hostile and violent (even fatal) protests around the world, leaving deep scars of social unrest long thereafter.


The other policy shortcoming is the perilous resort to a ban on exports of agricultural products to shore up supplies in some 30 countries during the 2008 crisis. In the wake of the destruction of crops in the Russian Federation in the droughts during 2010, Moscow resorted to restrictions on wheat exports — producing an extremely destabilising effect on agricultural markets. If Russia, Ukraine, Kazakhstan and Egypt clamped restrictions on wheat exports, curbs on rice exports by Indonesia, the Philippines, Vietnam and India have similarly pushed up global prices. The response from poor food importing countries has been either to lease or buy land overseas in order to bolster supplies and stocks.


In the developing world, the rapidly rising demand for food linked to the exponential rise in population and the challenge of alleviating endemic poverty are exerting enormous pressure on conventional forms of rural agriculture. There are two contending models on offer. One is to invite huge agribusinesses to exploit hitherto large unused land via capital and technology-intensive farming methods with a view to promoting the so-called trickle down growth that has been increasingly discredited. Such land acquisitions often impose their own set of choices in crop and cultivation patterns — and the ultimate sacrifice of relinquishing ownership rights over land.
The alternative to this G8-backed proposal is the formula put forward by the Africa Progress Panel. Proponents of this approach advocate raising the productivity of farmers through small holdings of land and technology, with a view to mitigating the widening inequalities that result from the trickle-down model of development. Given the grave implications of dislocation and dispossession of local populations of their land, not to mention loss of livelihoods, models such as the FAO’s International Soaring Food Prices Initiative to help small-holder farmers to grow more food seems a more realistic and sustainable way forward.
Clearly, the international community has yet to formulate an effective and concerted policy response to the underlying causes for the crisis over food prices. People in the developing world are said to spend about 75 per cent of their income on food compared to a meagre 25 per cent by those in the advanced economies, according to the FAO. Thus regulation of financial speculation relating to commodities, reversal of the distorting effects of biofuels policies and according respect and recognition to the rights to land and livelihoods deserve the highest international priority

Judicial Activism in India

Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice. It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary. FOR BASIC RIGHTS PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights. In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed. In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.” No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists. This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it. THE NEW INTERVENTION However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers. In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function. In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves. The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court. MILITARY OPERATION The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.” Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature. OTHER EXAMPLES Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India. The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases. Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.

In Pursuit of Life

Everything in the seven-minute action-packed entry sequence, starting with the spacecraft hurtling in at over 21,000 km per hour and ending with the six-wheeled robotic rover being lowered by nylon cords to the surface of Mars, went just as planned. Back on the home planet, controllers and mission staff assembled at the famed Jet Propulsion Laboratory in the U.S. jumped up in elation and celebrated when word came through in the form of radio signals that Curiosity, as the rover is called, had indeed landed safely. Soon afterwards, the first grainy picture taken by a camera on the rover came through. The plan is for the car-sized rover to spend the next two years trundling about, looking for indications that Mars could, at least in the past, have supported life. Humans have long been excited by ideas of life that might exist on the neighbouring planet. In the early years of the last century, it was thought that intelligent beings there had constructed a network of irrigation channels. From that, with a bit more imagination, ‘Little Green Men’, who might have designs on Earth, emerged. But in the years since then, it has become clear that Martians, if they indeed existed, would be microscopic and microbial, rather than the swashbuckling sort found in science fiction. Spacecraft that surveyed Mars from orbit and earlier rovers that wandered its surface have found convincing evidence that although the planet is now dry, liquid water once existed on its surface. Where there is water, there could have been life. Curiosity has been put down in the Gale Crater, which appears to have once held a large body of water. The rover’s instruments will look for more evidence of water and how the environment in the crater changed over time. It will study whether other ingredients needed to support life, such as key chemical elements and sources of energy, were present. If organic molecules are discovered, that might suggest life had existed, assuming that non-biological origins could be ruled out. Perhaps the most exciting possibility is finding unmistakable indications that life in some form still survives somewhere on the planet. India’s Mars mission, which was recently cleared by the Cabinet and is scheduled to be launched at the end of next year, should be able to contribute to such a search by scrutinising the planet’s atmosphere from orbit. There may be methane in the atmosphere, which could have a biological origin. The next logical step in the exploration of Mars will be to bring rock and soil samples back to Earth for detailed analysis. Such an ambitious and costly effort could well be an international one. Only then will the issue of life on that planet be finally settled.

Tourism in Tiger reserves must reinvent itself

The temporary halt to tourism in core zones of tiger reserves is a wake-up call to an industry that has grown rapidly and become disruptive in some places. Rather than view the Supreme Court’s interim order as a setback, tourism operators should see it as an opportunity to set things right. While there is no question that commercial tourism must be strictly regulated, a total ban on public access to wildlife reserves would be extremely harmful, as it will negatively impact conservation education, monitoring and other conservation activities by non-governmental organisations. Sensible tourism has an important role to play in conservation, and if government and tourism stakeholders work together, it is possible to craft solutions that benefit local communities, nature lovers, tourism operators and, most importantly, wildlife itself. While all of us may feel that we have a right to enjoy nature and the great outdoors, it is imperative that we understand that natural habitats are fragile, and ought to be trod on softly, observed quietly and enjoyed responsibly. Many developing countries, particularly in Africa and South America, have succeeded in establishing tourism practices that are low on impact and high on educational value. Many of their features can be emulated with appropriate adaptations. In India, Kerala’s Parambikulam Tiger Reserve has developed an enlightened model of wildlife tourism that is praiseworthy. TWO PROBLEMS; THE WAY OUT Two fundamental problems have led to the mayhem that prevails in some of our most popular reserves: first, a majority of tourism operators have little or no regard for nature, lack any sort of long-term vision and operate only for profit — tigers and their habitats be damned. The second problem is that most domestic tourists have very little interest in nature or the quiet wilderness experience, and come almost exclusively for the thrill of seeing charismatic mega fauna, mainly tigers. Consequently, wildlife tourism in many of our tiger reserves is more akin to a visit to an amusement park, with screaming tourists, harassment of animals and traffic jams being the norm. Most resorts provide no orientation to visitors, and most jeep drivers and guides — who receive little or no training — are usually only interested in the tips they can earn. The result is a mad scramble to spot the tiger so that each resort’s visitors can feel that they got their “money’s worth” out of the visit. This type of tourism does not build a constituency for conservation. There are other negative aspects of mass tourism. Due to a lack of land use planning or regulation, tourist resorts of all kinds have proliferated around the edges of some of the most popular reserves, creating a plethora of problems — from curtailing the traditional movement of animals towards water sources or other forests nearby, to excessive groundwater extraction and firewood use. Add garbage, sewage and noise pollution, and you have a mess that is as far from eco-tourism as it can get. There are a few sensitive resort operators who try to do the right things, and attract guests who come for the entire nature experience and not just for tigers. But like an organic farmer surrounded by pesticide-happy neighbours, the efforts of these operators and the aspirations of their nature-loving guests come to naught. While it may require the wisdom of Solomon to mitigate tourist pressure in and around reserves where tourism has already grown too large, all is not lost. So far, the chaos described earlier is largely restricted to a dozen places, whereas India has over 650 wildlife reserves, of which about 40 are tiger reserves. So, straightaway, we have a golden opportunity to ensure that the mistakes committed in a few places are not repeated elsewhere. As a first step towards ensuring sustainable and meaningful wildlife tourism, the National Tiger Conservation Authority has formulated Eco Tourism Guidelines. With appropriate consultation and implementation, these could finally help create a win-win formula for all stakeholders. Meanwhile, tourism operators would do well to move away from an obsessive tiger-centric focus and promote themselves as offering a broader nature experience, with the tiger as a tantalising possibility. For instance, tiger reserves like Corbett and Ranthambhore also have an excellent diversity of birds and other species. But, at the moment, one cannot watch other wildlife in peace in these reserves, with thrill-seekers whizzing past in clouds of dust. While it may initially seem financially foolish to look beyond the tiger, this strategy will ultimately pay off by attracting the right kind of visitors — people who are more interested in experiencing nature rather than creature comforts. This would not only usher in more peaceful tourism in wildlife habitats, but also enable lodges to cut down on unnecessary luxuries and optimise their profits. To survive and justify its existence, the wildlife tourism sector has no choice but to reinvent itself and get creative. The government must nurture the right atmosphere so that new ideas and initiatives have a chance to flower.

A natural choice for world heritage status

“Heritage is our legacy from the past, what we live with today, and what we pass on to future generations.” Unesco Founded in 1787, George Town, capital of Penang State, Malaysia, was declared a World Heritage Site by Unesco on July 7, 2008. Fort St. George in Madras that is Chennai is 150 years older and sowed the seeds for territories such as Penang, but has not received similar recognition. For over a decade, I have been appealing for the older Fort St. George to be declared a World Heritage Site (WHS), given its historical significance. And it is this case that I present again for consideration to the Committee on World Heritage Matters constituted by the Central Ministry of Culture when it holds a meeting in Chennai today to hear local views. Unesco defines a WHS as a place or environment of “great significance” or meaning to mankind. It may be a living urban city or a rural settlement, a natural landscape (an underground cave, for instance), a forest or a water body, an archaeological site (where excavations have revealed relics of the past) or a geological phenomenon. Thus, it could be a natural site, a cultural site (which would be a traditional man-made settlement representative of a culture or cultures resulting from human interaction with the environment), or a site that’s a mix of both. FOUR POINTS To be slotted into one of these categories, a potential WHS would need to, according to Unesco: 1) be of outstanding universal value which would be reflected in the historic, social, scientific, aesthetic and/or spiritual value of the place to mankind. 2) display progressive developments in architecture, technology, the creation of monuments, town-planning, landscaping, etc., 3) reflect a distinct cultural tradition/civilisation that is still vibrant or which has disappeared; and 4) have exceptional examples of building styles that reflect its history. Fort St. George, from where Madras was born and from which modern India grew, meets all these criteria and more. In historical terms, its outstanding universal value is unquestionable. From 1640 to the 1770s it was the chief British settlement, from Aden to Manila. From here grew not only the Empire, but also every institution of modern India. From governance by a governor and council and a municipal corporation, to the birth of the Indian Army and the founding of such institutions as the country’s first Western-style school (St. George’s today), the first technical school — the Survey School (later the College of Engineering, Guindy) — the first General Hospital, the first modern observatory and a host of other institutions, to, in more recent time, the first regional political party to sit in an Indian legislature (the Justice Party) and the introduction of Prohibition heeding Gandhiji’s call, Madras has a near-375-year-old history of achievement that is truly outstanding. Like the Fort, the “Indian” town that grew outside it — first the Old Black Town (now the High Court-Law College campus) and then the New Black Town (now George Town, Madras that is 50 years older than George Town, Penang) — has over the years reflected multiculturalism in ethnicity, language, religion, the arts and cultural tradition ranging from those of the English and Portuguese, to the Armenians, Gujaratis and Marwaris and the native Tamils and Telugus, of scores of different communities. Here flourish, or are remembered, all the major religions of the world. A score of languages are spoken every day and numerous cultural traditions are followed as a matter of course. And the architecture ranges from the centuries-old traditional to its later variations and the classical and colonial, from Madras’s own contribution, Indo-Saracenic, to art deco and the modern. As for town-planning, the gridiron lay-out for the “native” shophouses and other quarters behind the Fort and the merchants’ offices along the shoreline is colonial urban development pioneered here. With Fort St. George and George Town up to the Old Town Walls as the core zone, and from Royapuram to Park Town, Purasawalkam, Egmore and Chepauk to Triplicane High Road as the buffer zone, here is a site deserving of World Heritage consideration for its historic contribution to not only modern India but also to the empire the British spread beyond it. Empires may come and go, but history remains to be remembered and commemorated.

Arab Spring? The season has turned

Wissam Hassan would never commit murder in private life, he had no aspiration of taking a weapon either. Fourteen months ago, the discontented and frightened youth crossed over from Syria into Turkey traversing the dense yet porous terrain. He fled for his life, he told me in our first meeting in Yayladag˘i, Turkey, and transcended into a new state of being. As a refugee of the “Arab Spring,” unwilling to submit to Assad’s regime, he found home in one of the many rebel safe houses in Turkey’s Hatay province. Fourteen months ago he held his first automatic weapon and six months ago he fired his first bullet. He hasn’t stopped since. “The guns keep flowing,” he said. In a society ruled by the sword, might had to be matched with might and as lawlessness gripped the Syrian state, he became a foot soldier in the battle for power determined to rid Syria of a decaying political leadership. Now the battle cries have been sounded from other quarters. The Obama administration has abandoned dialogue and has upped the aid to rebels, following in the footsteps of Saudi Arabia and Qatar. Policy rooms in Washington discuss policies to safeguard Syria’s chemical weapon arsenal while an official in the Syria’s Intelligence Ministry calls this chapter of the Syrian misadventure “a battle to create chaos.” In Damascus Damascus is petrified: hardly a soul stirs on the streets, shutters to already struggling businesses are now drawn and the sanctions imposed by the U.N. have crated a fragile economic calamity. Gunfire reverberates, armed thugs in uniform and the army in choppers battle each other and rebels egged on by the recent suicide attacks that took from Assad members of his inner circle create havoc placing Syria on the edge of anarchy. Yet the international community continues to ballyhoo the crisis in leadership in Syria under the guise of the Arab Spring; are they unaware? Do they not realise that seasons change? Let us first rid ourselves of delusions. There is no Arab Spring, the term itself coined in Washington to reflect a period of openness in the Middle East in 2005 is an immensely popular and appealing gimmick-ridden campaign. There indeed was a bona fide revolution in Tunisia, but the Egyptian, Yemeni and Libyan cases have brought the sweetness of the Arab Spring into question. There has been no fundamental shift in power; people’s power has failed to replace the old system where powerful generals continue to preside over power in Egypt and thugs run Libya into the ground. Indeed there is a discontented youth frustrated with the constipated view of life and chronic discontent with the existing order has allowed for new stakeholders to stoke already rife tensions. Take Turkey for example. The state with a “zero-problem” foreign policy not so long ago now houses the opposition to the regime in refugee camps found along the Syrian-Turkish border. It also makes forays into the international arena with a policy that can be likened to a sort of neo-Ottomanism. Saudi Arabia and Qatar have channelled funds for the uprising allowing a ragtag militia to morph into armed gangs with an agenda of open rebellion. NATO and the U.S. have allied themselves with peoples, the Syrian National Council (SNC), who live in a world of ideas with little contact to physical realities. The highbrow benefactors of aid, the Europeanised opposition, rule from five-star hotels in Istanbul and bicker among themselves, each motivated by his own political agenda. Misguided strategy Now a Libyan style intervention into Syria is on the table for discussion. This would be a misguided strategy, the Libyan case should be proof enough. In the last days of the Qadhafi regime, a senior aide to the Brother Leader asked who we reporters would speak to when the night sky was calm. Today, armed thugs united to defeat Qadhafi, battle each other pushing Libya towards civil war. Syria has ushered many comparisons, parallels have been drawn to the Balkans yet the closest comparison is Iraq, its weakened neighbour where Sunni and Shi’a and Kurd jockey for power unwilling to share authority resulting in political deadlock. Let us not love the dictator but let us also avoid romanticising the revolution. Assad has indeed clung onto unabashed privileges, and hammered political dissent creating a system where organised alternatives, so-called governments in the waiting like Tunisia’s Ennahda and Egypt’s Muslim Brotherhood do not exist. Yet a stalemate has been reached with neither side, rebel or government, willing to engage in constructive dialogue. Recent efforts at diplomacy by Kofi Annan and the blatant disregard to his calls for ceasefire push a country further towards an all-out civil war. Another stalemate in the Security Council — Russia and China have vetoed further sanctions — creates a space for another push at diplomacy. Would it not be wiser for foreign powers meddling in the region to back off and push for dialogue? In a recent conversation with Adib Shishakly, once a Gandhian philosophy-espousing founding member of the opposing SNC, I was alarmed at his request. “What we need are anti-tank missiles. There is no space for dialogue,” he said. Would the rebels he helped arm lay down their weapons once the conflict was over? He had no definitive answer. Would he and other members of the SNC genuinely unite to lay the groundwork for a new Syria? He hoped so but Wissam Hassan, the rebel with the gun, wasn’t as optimistic. To him the opposition are disconnected Europeanised technocrats incapable of leading and not worthy of leadership. Tragically, one cannot simply change from one system to another. In the Syria of today, no leader has emerged from the ranks of the rebels, no flag-bearer of the opposition has won the people over and Bashar continues to rule with his eyes shut.

President's Rule: Limits & checks

THE Governor of Karnataka, H.R. Bhardwaj, put the Government of India in a most embarrassing position by recommending imposition of President's Rule in the State. In the process, he exposed, once again, his unfitness for the office he holds.

The rejection of his recommendation means that his prestige, none too high at any time, will suffer a terrible blow. Had the recommendation been accepted, it would have landed not only the Government of India but also the President in a most embarrassing situation in the Supreme Court. The court would be entitled to examine the material on the basis of which the Council of Ministers advised the President, and the onus of justifying the reckless action would not be on the petitioners but on the Union of India.

A nine-member Bench of the Supreme Court definitely construed the scope of Article 356 of the Constitution, which empowers the imposition of President's Rule in the States, in the famous case of S.R. Bommai and others vs Union of India and others ((1994) 3 Supreme Court Cases 1). It went beyond State of Rajasthan vs Union of India ((1977) 3 SCC 592) on the scope of judicial review. The President, who is sworn to uphold the Constitution and the law of India, can be fully trusted to follow this ruling whenever a draft proclamation imposing President's Rule in any State is presented for his/her signature by the Union Council of Ministers. The Prime Minister and the other Ministers, who have also taken the oath to abide by the Constitution, would also appreciate the stringent conditions the court's ruling in the Bommai case has imposed for the exercise of power under Article 356. The court decided the case on March 11, 1994. But the detailed implications of that ruling have yet to seep in.

The ruling was followed by a verdict by a five-member Bench in the Bihar case Rameshwar Prasad vs Union of India ((2006) 3 SCC 1). In both cases, the test of a vote by the Assembly in cases of disputed majority was approved.

It must be borne in mind that the court's ruling in the Bommai case, which remains definitive, came in the wake of deep, persistent public disquiet on the abuse of Article 356, a fact that is now universally admitted. The commission on Centre-State relations, headed by Justice R.S. Sarkaria, noted in its report, submitted in 1988, the deep resentment that the abuse of this provision caused among the States. The States were treated under the Constitution with less consideration and less respect than a municipality. The Supreme Court ruled (in New Delhi Municipal Committee vs Union of India) that a municipal body cannot be superseded, without notice ( S.L. Kapoor vs Jagmohan (1980) 4 SCC 379). The court said:

“A committee so soon as it is constituted, at once assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the committee to serve its full term of office would certainly create sufficient interest in the municipal committee and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed.”

The order of supersession was held to be “vitiated by the failure to observe the principles of natural justice”. The judgment was delivered on September 18, 1980. The NDMC's term was to expire on October 3, 1980. The judgment was based on the principles of administrative law, which require strict observance of the principles of natural justice for such executive action. They apply if a State government supersedes a municipal body. Should they not apply also if the Government of India ousts an elected State government and imposes direct Central rule through a presidential proclamation under Article 356 of the Constitution?

In an authoritative exposition in the Constituent Assembly of India on August 4, 1949, the Chairman of the Drafting Committee, Dr B.R. Ambedkar, said: “If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a Province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the Province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article. It is only in those circumstances he would resort to this Article”. ( Constituent Assembly Debates: Vol. ix, pages 176-177).

Stringent conditions

The Supreme Court's ruling in the Bommai case highlighted clearly the many and stringent conditions for the valid exercise of the power under Article 356. They are:

(1) Whether conditions in fact exist objectively which render it impossible to carry on the governance of the State in accordance with the provisions of the Constitution; even so, this power must be used sparingly and so as not to disturb the federal balance of power between the Union and States since federalism is part of the unamenable basic structure of the Constitution.

(2) The State's Assembly must not be dissolved before both Houses of Parliament have approved the proclamation made by the President under Article 356.

(3) Even after such approval it will be open to the courts to consider independently whether in fact conditions so existed as to warrant exercise of the power under Article 226; judicial review, which is also part of the basic structure of the Constitution, is available in respect of Article 356. It can be exercised by the High Courts and the Supreme Court. Once a prima facie case is made out, the burden of proof will lie on the Government of India to justify the action.

(4) The court will be entitled to requisition the records from the government containing the material on the basis of which the Council of Ministers of the Government of India tendered the advice to the President.

(5) The courts have the power to order an interim stay on the exercise of power under Article 356.

(6) Lastly, the courts have the power, if the proclamation is struck down as unconstitutional, to order the revival of the dissolved State Assembly and restoration of the dismissed State government.

These six propositions emerge very clearly from the judgments pronounced by the nine judges who sat on the Special Bench that heard the case.

Article 356 is based on Section 93 of the Government of India Act, 1935. On August 14, 1947, a day before India became independent, the Governor-General, in exercise of his powers under Section 8 (2) of the Indian Independence Act, 1947, made the India (Provisional Constitution) Order, 1947, adapting the Act of 1935 with important modifications, as a provisional Constitution of India while the Constituent Assembly was at work on a new Constitution.

This Order omitted the hated Section 93 completely. Thus, from August 15, 1947, until January 25, 1950, the country was governed without any provision in its constitution for Governor's rule or Governor-General's rule. This period witnessed communal riots, refugee influx, the Telangana armed rebellion and much else. Section 93 was thus proved dispensable for two and a half years.

Article 356 was adopted by the Constituent Assembly bearing in mind the abnormal conditions the country was passing through.

The following exchange between Ambedkar and Pandit Hriday Nath Kunzru in the Constituent Assembly deserves noting. Pandit Kunzru put a specific question to Ambedkar during that debate on August 4, 1949:

“May I ask my honourable friend to make one point clear? Is the purpose of Articles 278 and 278-A to enable the Central government to intervene in provincial affairs for the sake of good government of the provinces?

The Honourable Dr B.R. Ambedkar: No. No. The Centre is not given that authority.

Pandit Hriday Nath Kunzru: Or, only when there is such mis-government in the province as to endanger the public peace?

The Honourable Dr B.R. Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional government of the provinces. Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point.

Pandit Hriday Nath Kunzru: What is the meaning exactly of the provision of the Constitution taken as a whole? The House is entitled to know from the honourable member what is his idea of the meaning of the phrase ‘in accordance with the provisions of the Constitution'.”

Ambedkar referred him to the Government of India Act, 1935, which used this expression in Section 93. He, however, took care to emphasise the limitations:
“In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact, I share the sentiments expressed by my honourable friend Mr Gupte yesterday that the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter.”

Objective tests for the use of the power

I. In the Bommai case, Justice P.B. Sawant said in his judgment, with which Justice Kuldip Singh concurred: “Articles 278 and 278-A of the Draft Constitution referred to above correspond to present Articles 356 and 357 of the Constitution respectively. Thus, it is clear from Article 355 that it is not an independent source of power for interference with the functioning of the State government but is in the nature of justification for the measures to be adopted under Articles 356 and 357. What is, however, necessary to remember in this connection is that while Article 355 refers to three situations, viz (i) external aggression (ii) internal disturbance, and (iii) non-carrying on of the government of the States in accordance with the provisions of the Constitution, Article 356 refers only to one situation, viz., the third one. As against this, Article 352, which provides for Proclamation of Emergency, speaks of only one situation, viz., where the security of India or any part of the territory therefore, is threatened either by war or external aggression or armed rebellion. The expression ‘internal disturbance' is certainly of larger connotations than ‘armed rebellion' and includes situations arising out of ‘armed rebellion' as well. In other words, while a Proclamation of Emergency can be made for internal disturbance only if it is created by armed rebellion, neither such Proclamation can be made for internal disturbance caused by any other situation nor a proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. A mere internal disturbance, short of armed rebellion, cannot justify a proclamation of Emergency under Article 352 nor such disturbance can justify issuance of proclamation under Article 356 (1), unless it disables or prevents carrying on of the government of the State in accordance with the provisions of the Constitution. Article 360 envisages the Proclamation of financial emergency by the President when he is satisfied that a situation has arisen whereby the financial stability or credit of the country or of any part of the territory thereof is threatened. It declares that such Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two months unless it is approved by the resolutions of both Houses of Parliament. We have thus emergency provisions contained in other Articles in the same part of the Constitution” (Para 57, page 92).

Thus, mere internal disturbance, short of armed rebellion, cannot justify a Proclamation under Article 356. No such disturbance can justify the issuance of Proclamation under Article 356 (1) unless the situation prevents the carrying on of the government of the State in accordance with the provisions of the Constitution.

Likewise, Justice B.P. Jeevan Reddy, with whom Justice S.C. Agrawal concurred, remarked in words of strong disapproval as follows: “Since the commencement of the Constitution, the President has invoked Article 356 on as many as ninety or more occasions. Quite a performance for a provision which was supposed to remain a ‘dead-letter'. Instead of remaining a ‘dead-letter', it has proved to be a ‘death-letter' of scores of State governments and Legislative Assemblies. The Sarkaria Commission, which was appointed to look into and report on Centre-State relations, considered inter alia the manner in which this power had been exercised over the years and made certain recommendations designed to prevent its misuse. Since the Commission was headed by a distinguished Judge of this court and also because it made its report after an elaborate and exhaustive study of all relevant aspects, its opinions are certainly entitled to great weight notwithstanding the fact that the report has not been accepted so far by the Government of India” [Para 295, page 228].

They proceeded to quote extensively from the recommendations made by the Sarkaria Commission, which thus received the imprimatur of the approval of the Supreme Court. (Justice Sawant had also quoted from it.) The judges added: “The aforesaid recommendations are evidently the outcome of the opinion formed by the Commission that more often than not the power under Article 356 had been invoked improperly. It is not for us to express any opinion whether this impression of the Commission is justified or not. It is not possible for us to review all the ninety cases in which the said power has been invoked and to say in which cases it was invoked properly and in which cases, not. At the same time, we are inclined to say, having regard to the constitutional scheme obtaining under our Constitution, that the recommendations do merit serious consideration (Para 300, page 231).

“It is probably because he was of the opinion that the invocation of this power was not warranted in many cases, Shri P.V. Rajamannar, former Chief Justice of Madras High Court [who was appointed as the Inquiry Committee by the Government of Tamil Nadu to report on the Centre-State relations], recommended that Articles 356 and 357 be repealed altogether. [See para (8) in Chapter IX, “Emergency Provisions” of his report, submitted in 1971]. In the alternative, he recommended, safeguards must be provided to secure the interests of the State against the arbitrary and unilateral action of the party commanding overwhelming majority at the Centre. In other respects, Shri Rajamannar's views accord broadly with the views expressed by the Sarkaria Commission and hence, need not be set out in extenso” (Para 301, page 231).

In para 434 (1), page 296, the judges concluded: “Article 356 of the Constitution confers a power upon the President to be exercised only when he is satisfied that a situation has arisen where the government of a State cannot be carried on in accordance with the provisions of the Constitution”. (italics here as in the original).

More than one judge emphasised that the power must be exercised very sparingly. Justice S. Rathnavel Pandian said: “I am of the firm opinion that the power under Article 356 should be used very sparingly and only when the President is fully satisfied that a situation has arisen where the government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the constitutional balance. Further if the Proclamation is freely made, then the Chief Minister of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State” (Para 8, page 66).

Justices Sawant and Kuldeep Singh observed as follows: “An allied question which arises in this connection is whether, notwithstanding the fact that a situation has arisen where there is a breakdown of the constitutional machinery in the State, it is always necessary to resort to the power of issuing Proclamation under Article 356 (1). The contention is that since under Article 355, it is the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of the Constitution and since further the issuance of the proclamation under Article 356 (1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356 (1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in Paragraph 77 above. He has expressed the hope there that resort to Article 356 (1) would be only as a last measure and before the Article is brought into operation, the President would take proper precaution. He hoped that the first thing the President would do would be to issue a mere warning. If the warning failed, he would order an election and it is only when the said two remedies fail that he would resort to the Article. We must admit that we are unable to appreciate the second measure to which Dr Ambedkar referred as a preliminary to the resort to Article 356 (1). We should have thought that the elections to the Legislative Assembly are a last resort and if they are held, there is nothing further to be done by exercising power under Article 356 (1). We may, therefore, ignore the said suggestion made by him. But we respectively endorse the first measure viz. of warning to which the President should resort before rushing to exercise the power under Article 356 (1). In addition to warning, the President will always have the power to issue the necessary directives. We are of the view that except in situations where urgent steps are imperative and exercise of the drastic power under the Article cannot brook delay, the President should use all other measures to restore the constitutional machinery in the State. The Sarkaria Commission has also made recommendations in that behalf in paragraphs 6-8-01 to 6-8-04 of is Report. It is not necessary to quote them here. We endorse the said recommendations” (Para 109, page 121).

Justice K. Ramaswamy said: “In particular when the Union of India seeks to dismiss a State Ministry belonging to a different political party, there is bound to exist friction. The motivating factor for action under Article 356 (1) should never be for political gain to the party in power at the Centre, rather it must be only when it is satisfied that the constitutional machinery has failed. It is to reiterate that the federal character of the government reimposes the belief that the people's faith in democratically elected majority or coalition government would run its full term, would not be belied unless the situation is otherwise unavoidable. The frequent elections would belie the people's belief and faith in parliamentary form of government, apart from enormous election expenditure to the State and the candidates. It also generates disbelief in the efficacy of the democratic process which is a death-knell for the parliamentary system itself. It is, therefore, extremely necessary that the power of proclamation under Article 356 must be used with circumspection and in a non-partisan manner. It is not meant to be invoked to serve political gain or get rid of an inconvenient State government for good or bad governance. But only in cases of failure of the constitutional machinery of the State government” (Para 223, page 191).

The judges also emphasised that Article 356 must be construed in the light of the federal character of the Constitution. Justices Sawant and Kuldeep Singh observed as follows: “The above discussion thus shows that the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule” (Para 99, page 115).

Justice Ramaswamy made similar observations: “Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals, including secularism” (Para 247, page 205).

Justices Jeevan Reddy and Agrawal observed: “The fact that under the scheme of our Constitution greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central governments be it the result of advances in technological/scientific fields or otherwise, and that even in USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the Court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of the principle – the outcome of our own historical process and a recognition of the ground realities” (Para 276, page 216-217).

Subject to review

II. There was complete unanimity on the point that a Proclamation made under Article 356 is subject to judicial review. Justice A.M. Ahmadi recorded that both the Attorney General and counsel for the Union of India agreed that a Proclamation under Article 356 is open to judicial review. There was scope for argument on the area of justiciability. It is well settled that mala fides, for instance, will vitiate the Proclamation.

III. Article 74 of the Constitution reads thus: “(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice. Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

A Government of India which advises the President to sign a Proclamation under Article 356 runs a clear risk. While no court can call upon the government to disclose its advice, it is now settled beyond all doubt that courts have the power to summon the files and ascertain the material on which that advice was based. The impact of that disclosure on the nature of the advice is obvious. If the advice is irrational, politically motivated, perverse or mala fide , it will expose the Government of India to ridicule and invite the censure of the court. That will emerge clearly from the material shown to the court. No government should put the President in such a predicament, in a court of law.

Justices Sawant and Kuldeep Singh ruled: “The validity of the Proclamation issued by the President under Article 356 (1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in the challenge to the Proclamation, the burden is on the Union government to prove that the relevant material did in fact exist, such material may be either the report of the Governor or other than the report. Article 74 (2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction” (Para 153, page 148).

Justice K. Ramaswamy observed: “By operation of Article 74 (2) only the actual advice tendered by the Council of Ministers gets immunity from production and the court shall not inquire into the questions whether and if so what advice was tendered by the Minister. In other words, the records other than the advice tendered by the Minister to the President, if found necessary, may be required to be produced before the constitutional court” (Para 208, page 182).

Justice Jeevan Reddy and Agrawal held to the same effect: “Article 74 (2) merely bars an enquiry into the question whether any and if so, what advice was tendered by the Ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. Article 74 (2) and Section 123 of the Evidence Act cover different fields. It may happen that while defending the Proclamation, the Minister or the official concerned may claim the privilege under Section 123. If and when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of Section 123” (Para 434 (6), page 297).

Justice S. Rathnavel Pandian also agreed with this conclusion: “I find myself in agreement with the opinion of P.B. Sawant, J. on his conclusions 1, 2 and 4 to 8 with which B.P. Jeevan Reddy J. concurs in his judgment (speaking for himself and on behalf of S.C. Agrawal, J.) but so far as the reasoning and other conclusions are concerned, I agree fully with the judgment of B.P. Jeevan Reddy, J. Yet I would like to give my brief opinion on the constitutional question of substantial importance in relation to the powers of the President to issue proclamation under Article 356 (1) of the Constitution” (Para 2, page 65).

Thus a clear majority of six judges in the nine-member Bench rule that the material on the basis of which advice was tendered is liable to be produced in court.

Assembly dissolution

IV. Justice Jeevan Reddy and Agrawal ruled: “Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme, that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation” (Para 434 (3), page 296).

To the same effect is the ruling of Justices Sawant and Kuldeep Singh: “Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under sub-clauses (a) (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the power of the Governor under Article 174 (2) (b) read with Article 356 (1) (a) till at least both the Houses of Parliament approve of the Proclamation” (Para 153 (IV), page 149). Justice S. Rathnavel Pandian concurred with this point as is clear from his observations in para 2 at page 65.

Here again, there is a clear majority ruling that the Assembly must not be dissolved until both Houses of Parliament have taken a decision on the Proclamation.

On revival of Assembly

V. The Bommai case breaks new ground on the revival of the Assembly despite its dissolution and the dismissal of the State government. Hitherto it was believed, quite mistakenly, that even if the orders in respect of them are held to be void the status quo ante cannot be restored. In principle, there is no reason why striking down a void order should not have the same consequences in these matters as in all other; namely, nullify the action and restore the situation to what it was before the unconstitutional act was committed. In the Bommai case the Supreme Court has ruled categorically that if a Proclamation under Article 356 is struck down as invalid, the court can order revival of the dissolved Assembly and restoration of the dismissed government.

Justices Sawant and Kuldeep Singh ruled: “If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the court to restore the status quo ante to the issuance of the proclamation and hence to restore the Legislative Assembly and the Ministry” (Para 153 (50), page 149). Justice Rathnavel Pandian concurred on this point.

Justices Jeevan Reddy and Agrawal held to the same effect: “Now, coming to the power of the court to restore the government to office in case it finds the Proclamation to be unconstitutional, it is, in our opinion, beyond question. Even in case the Proclamation is approved by Parliament it would be open to the court to restore the State government to its office in case it strikes down the Proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless. If the court cannot grant the relief flowing from the invalidation of the Proclamation, it may as well decline to entertain the challenge to the proclamation altogether. For, there is no point in the court entertaining the challenge examining it, calling upon the Union government to produce the material on the basis of which the requisite satisfaction was formed and yet not give the relief. In our considered opinion, such a course is inconceivable” (Para 291, page 226-227).

In the summary of their conclusion, the judges ruled: “If the court strikes down the Proclamation, it has the power to restore the dismissed government to the office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the Proclamation was in force, shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the government/Legislative Assembly or other competent authority to review, repeal or modify such acts, orders and laws” (Para 434 (8), page 298).

Interim relief

VI. The Supreme Court also opened a new vista for challenge to unconstitutional action by holding, by a clear majority, that it has the power to grant interim relief. Justice Sawant and Kuldeep Singh observed as follows:

“The further important question that arises is whether the court will be justified in granting interim relief and what would be the nature of such relief and at what stage it may be granted. The grant of interim relief would depend upon various circumstances including the expeditiousness with which the court is moved, the prima facie case with regards to the invalidity of the Proclamation made out, the steps which are contemplated to be taken pursuant to the proclamation, etc. However, if other conditions are satisfied it will defeat the very purpose of the judicial review if the requisite interim relief is denied. The least relief that can be granted in such circumstances is an injunction restraining the holding of fresh elections for constituting the new Legislative Assembly. There is no reason why such a relief should be denied if a precaution is taken to hear the challenge as expeditiously as possible taking into consideration the public interests involved. The possibility of the delay in disposal of the challenge cannot be ground for frustrating the constitutional right and defeating the constitutional provisions. It has, however, to be made clear that the interlocutory relief that may be granted on such challenge is to prevent the frustration of the constitutional remedy. It is not to prevent the constitutional authority from exercising its powers and discharging its functions. Hence, it would be wholly impermissible either to interdict the issuance of the Proclamation or its operation till a final verdict on its validity is pronounced. Hence, the normal rules of ‘quia timet' action have no relevance in matters pertaining to the challenge to the proclamation. To conclude, the court in appropriate cases will not only be justified in preventing holding of fresh elections but would be duty-bound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the emasculation of the Constitution” (Para 115, page 124).

In a summary of their conclusions they ruled categorically: “In appropriate cases, the court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However, the court will not interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation” (Para 153 (6), page 149). This conclusion was also endorsed by Justice S. Rathnavel Pandian.

Justices Jeevan Reddy and Agrawal also expressed their concurrence with this conclusion: “In the light of reasons given and conclusion recorded hereinabove, we find ourselves in agreement with the conclusions 1, 2 and 4 to 7 in the judgment of our learned Brother Sawant, J., delivered on behalf of himself and Kuldip Singh, J. We are also in broad agreement with conclusion 8 in the said judgment” (Para 435, page 299).

To sum up, what the Supreme Court did is to make judicial review of the Proclamation under Article 356 far more effective by circumscribing the conditions in which the Article can be invoked; it asserted the right to call for the production of records on the basis of which Union Council of Ministers advised the President; put a restraint on the dissolution of the Assembly prior to parliamentary ratification of the Proclamation; asserted the court's power to order revival of the Assembly and the restoration of the government, even after Parliament has approved the Proclamation, if the court finds them to be unconstitutional; and, not least, it asserted the power to grant interim relief, to prevent the holding of elections to the Assembly in order to defeat a legal challenge to the Proclamation under Article 356 by which the Assembly had been dissolved.

These are all very substantial gains; very substantial guarantees against abuse of power and for the maintenance of the federal structure of the Constitution.

When Governor H.R. Bhardwaj recommended imposition of President's Rule in Karnataka, he revealed either his ignorance of the law – very understandable given his intellectual equipment – or his decision to flout the law; more likely than not the former. His retirement from any public office has been long overdue. Given the Government of India's brusque rejection of his report, with what self-respect can be continue to occupy the Raj Bhavan in Bangalore?