SCOPE OF ARTICLE 164(1)

An article written by R. B. Singh that was originally published in Our Leader (Allahabad edition) on November 6, 1993

We have witnessed something in Karnataka, which needs mention.

            A Division Bench of Karnataka High Court consisting of Mr. Justice Ramajois and Mr. Justice N. D. Venkatesh had passed certain strictures in Arrack Bottling contact to Messrs Sea Shell Bottling Company; in pursuance of the above, Ram Krishna Hegde, Chief Minister of Karnataka, sent his resignation on 11^th February, 1986 to A. N. Banerjee, Governor of Karnataka, who was on tour.

             It was announced that the Governor would return the next day. Rama Krishna Hegde, later left for Kanpur to attend the wedding of a relative.

A.               N.  Banerjee, Governor of Karnataka on February 12, 1986 deferred the acceptance of the resignation of Rama Krishna Hegde, Chief Minister of Karnataka; it was announced that the Governor would take a decision on it on Friday, the February 14, 1986, the Speaker need out a statement that the law and parliamentary Affairs Minister had informed him of Mr. Hedge’s resignation and he was adjourning the house sine die.

Arjun Singh, vice President of Congress (i) party on February 13, 1986 at a hurriedly convened press Conference, questioned the ptopriety of Karnataka Governor with holding the resignation of the Chief Minister Mr. Ram Krishna Hegde and said this had created a vaccum. In the event of resignation of a Chief Minister, it was the Governor’s responsibility to accept or the reject it. The later being very rare.

The Governor’s decision to with held the resignation has bogged down the normal constitutional process; he told.

The right course for the Governor, Mr. Arjun Singh and Mr. Bhagawat Jha Azad, General Secretary Incharge of Karnataka said, would have been to accept Mr. Hedge’s resignation and asked him to continue till alternative arrangement was made.

In wake of the above assertion, A. N. Banerjee, Governor of Karnataka accepted the resignation of the Chief Minister Ram Krishna Hegde on February 13, 1986 in late hours of night, ( a day before the day fixed by him or the same after talked with Hedge), without waiting for the return of the Chief Minister Ram Krishna Hegde from Kanpur.

There was hectic political activities in Delhi…..after it the Janta Legislative party of Karnataka met on February 16, 1986 at Bangalore and re-elected Ram Krishna Hegde, the outgoing Chief Minister of Karnataka as its leader. His name was proposed by Mr. Chandrashekhar, President of Karnataka Janta Party and seconded by N. S. Narayan Rao, General Secretary of Janta Party.

Ram Krishna Hegde, later told newsmen, as a humble party worker I have no alternative but to accept the decision of the Janata Legislative party of the state.

The re-election of Ram Krishna Hegde, as leader of the Janta Legislative Party of Karnataka was communicated to the Governor same day , and he was requested to re-invite him to form a Government by the Secretary of the Janta Legislative Party of Karnataka.

The Governor of Karnataka accepted the above , and invited Ram Krishna Hegde to form a government. He administered oath of office and secreacy to Ram Krishna Hegde on February 16, 1986 at about 3 p.m. with him were also sworn in 14 Cabinet Ministers and 15 Ministers of state; thus ended the drama on February 16, 1986 annunciated by Ram Krishna Hegde on February 11, 1986 by sending his resignation to the Governor.

1.    In the above process the Chief Minister of Karnataka used and exercised the constitutional process mentioned in Article 164(1) of the Constitution of India of submission of his resignation.

2.   The Governor of Karnataka used and exercised the constitutional process, mentioned in  the same Article of the appointment of the Chief Minister and 29 other ministers.

3.  The Governor of Karnataka used and exercised the constitutional process mentioned in the same Article administering of oath to the Chief Minister and Ministers.

1.   The submission of the resignation by Ram Krishna Hegde, Chief Minister of Karnataka had caused one constitutional process to take place; for the sake of his political expediency or otherwise…..

2.   The acceptance of the resignation of Ram Krishna Hegde, Chief Minister of Karnataka by the Governor, other developments and his swearing along with other ministers had caused three more constitutional processes to take place.

3.         Had the Governor of Karnataka struck to is earlier decision of February 12, 1986 by which he had deferred the acceptance of the resignation of Chief Minister Ram Krishna Hegdetill talks with him on Friday i.e. February 14, 1986 or for few days more certainly the process as found our between February 13, 1986

But the havoc created by the version of Arjun singh, Vice President of Congress (I) Party and Bhagwat Jha azad, General Secretary had caused the hasty acceptance of the resignation of Chief Minister Ram Krishna Hegde by A. N. Banerjee, Governor of Karnataka and multiplication of the constitutional process. Chandrashekhar, Janta Party president from the very start of the Karnataka Drama was insisting that Chief Minister, Ram Krishna Hegde need not resign his office…. In the entire process of the resignation of Ram Krishna Hegde on February 11, 1986… thus had become an extra constitutional centre of power too, like Vice President of ruling Congress (I) Party Arjun Singh.

            The Governor of State has one and only one adviser the Chief Minister and his council of Ministers which continue to command the uninterrupted confidence of the Legislative Assembly of the State.

1.       Here the faith of the Legistlative Assembly had not been lost; It was retaining

Ram Krishna Hegde, Chief Minister of Karnataka and his Council of Minister of Karnataka and only Ram Krishna Hegde was running away.

2.  If Ram Krishna Hegde would have run away; the Janta Legistlative Party to Karnataka would have elected a leader who would have come out with full vigour and formed the Government as Chief Minister of state and deformed his Constitutional function under relevant articles of the constitution of India.

3.   There was no need for Governor to accept the advice of the extra constitutional center of power i.e. Vice-President of ruling Congress(I) Party of the Centre and its general secretary and make a mess of every thing .

4.   The relationship between A. N. Banerjee of Karnataka and Ram Krishna Hegde, Chief Minister of Karnataka and his cabinet were strained from the begning  they become cordial due to the cordiality and good will developed due to the process of the reconciliation , understanding and toleration then by Rajive Gandhi , Prime Minister of India……. Now this heavy acceptance of the resignation of the Chief Minister Ram Krishna Hegde on February 13, 1986 after deferring it on February 12, 1986 till February 14, 1986 had sowed the seed of his content again.

I advice both the Governor and the Chief Minister to come together for getting this discontentment.

One question to Arjun singh. Vice President of ruling Congress (I) Party of the Centre.

You have served as Chief Minister of Madhya Pradesh, along with three Governors, C.M. Poonacha, Bhagawat Dayal Sharma and K. M. Chandi …. If you would have submitted your resignations like Ram Krishna Hegde and they would have deferred the acceptance of your resignation for two days for talks to you and then would have accepted it hastily the next day; what you would have experienced , you certainly would not have admitted the said act of the Governor but would have felt it otherwise.

            Why you sent a havoc by your press conference of February 13, 1986 by which the Governor became an easy prey and hastily done something which he would not have done otherwise.

A.        N.    Banerjee Governor of Karnataka, had done something like Governor Dharma Vira, D. C. Pavate, Ram Lal , Jagmohan, etc. of the times of previous regimes.

In the end I have to emphasis that the office of the Governor is a constitutional office, he is the HEAD OF STATE, the nominal executive, the replica of British Monarch, he should not subject himself to the dictates of Delhi, but always act on the advices of his constitutional Advisers or the Chief Minister and his Council of Ministers of the State. 

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JUDICIAL REVIEW OF ARTICLE 356

An article written by R. B. Singh that was originally published in Our Leader (Allahabad edition) on October 22, 1993

Events are events, they cannot be denied: it is better to have a clear and distinct vision of the past to provide a safeguard against the re-occurrence of them in future.

Bengal had been termed always, the laboratory of India; it had also been said, “What is occurring in Bengal today, will occur in the rest of India tomorrow.

          Following the events of February 14, 1968 Shri Dharam Vira, Governor of West Bengal, might have summoned Dr. P. C. Ghosh, Chief Minister of the state, belonging to the Progressive Democratic Front Congress Party, members of his Council of Ministers, secured an advice from them for dissolution of the Legislative Assembly and mid-term poll. He would have dissolved the Legislative Assembly in exercise of his powers under Article 172(2) (b) of the Constitution of India, asked Dr. P. C. Ghosh and his Council of Ministers to function in caretaker capacity, wrote to the Chief Election Commissioner to make arrangements for the mid-term General Election, but he did not choose the above instead he preferred to submit a report to the President of India in exercise of his powers under Article 356 of the Constitution of India while reads:

(i) If the President on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provision of this Constitution, the President may be Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any body or authority in the State;

(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State:

Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High court, or to suspend in whole or in part the operation of any provision on this Constitution relating to High Courts.

            He wrote to the President of India:

            As you are aware the United Front Ministry led by Shri  Ajoy Kumar Mukherji as the Chief Minister ceased to hold office on the 21^st November 1967 and the Ministry headed by Dr. P.C. Ghosh, leader of the newly formed Progressive democratic Front, and supported by the Congress Legislature Party was sworn in on the same day.

            I enclose a copy of the press announcement from Raj Bhawan of the 21^st November 1967 which give the necessary back ground in this regard and which I authorized for issue at the time. Also enclosed are copies of the relevant gazette notifications on the subject.

            On the advice of the new Chief Minister, Dr. P. C. Ghosh I summoned a session of the state Legislature to meet on the 29^th November 1967. At the commencement of the sitting of the Legislative Assembly on that date and before any other business could be taken up, the speaker made a written statement in the first paragraph of which he remarked as follows:

            “ I am prima facie satisfied that the dissolution of the Ministr headed by Shri Ajoy Kumar Mukherjee, the appointment of Dr. P. C. Ghosh as Chief Minister, and the summoning of the House on his advice is unconstitutional and invalid  since it has been effected behind the back of this house. Pending a full and proper examination of the matter, in exercise of the powers vested in me under Rule 15 of the rules of procedure of this Assembly I adjourn the House sine die.”

       I enclose a copy of the Speaker’s statement. This was followed by compete pandemonium in the House during which the Chief Minister was hit by a heavy metallic object hurled towards him causing him, fortunately, only a minor injury. The Legislative Council also met on the same day and passed a motion of confidence in the Ministry headed by Dr. P. C. Ghosh.

            On the advice of the Chief Minister I prorogued  the Legislative Assembly with effect from the 30^th November 1967 and also on his advice, the Legislative Council with effect from the 1^st December 1967.

On 21^st November 1967 I had sworn in the two other Ministers belonging to the Progressive Democratic Front along with the Chief Minister. The Ministry was subsequently enlarged by the addition of four Ministers and four Minister of State, all belonging to the Progressive Democratic Front. The congress party in the state Legislature later decided to form a coalition with the Progressive Democratic Front and on the 15^th January 1986 , six Ministers belonging to the Congress Party, were appointed on the Chief Minister advice. The Progressive Democratic Front, Congress coalition Ministry thus came to consist of the Chief Minister, 12 Ministers and four Ministers of state.

          The legality of appointment of the Ghosh Ministry was contested by three writ petitions in the Calcutta High Court. On the 6^th February a Judge of the Calcutta High Court after a contested hearing delivered an elaborate judgment and upheld my legal competence to take the action I had taken as Governor of the State. A copy of the Judgement is enclosed. I understand that an appeal has been filed before the appeal bench of the High Court against that Judgment.

           On the 11^th February, 18 MLAs wrote to me withdrawing their support to the Progressive Democratic Front Congress coalition Government from that date. Some of them also came to see me alongwith Shri Ashutosh Ghosh , MLC. These MLAs formed a Front called the Indian National Democratic Front under the leadership of Shri Syankardas Bajerji, MLA. There were some tals between the MLAs who formed Front and the United Front Leaders for forming an alternative Government.

              In this connection Shri Ajoy Kumar Mukherji, leader of the United Front and Former Chief Minister, and Shri Jyoti Basu, former Deputy Chief Minister, met me on the 13^th Feburary. They handed over to me a copy of their letter to Shri Shankardas Banerji offering the United Font’s support to his party on certain conditions. They said that as the congress, Progressive Democratic Front coalition had lost its majority, that Ministry should be dismissed and Shri Shankardas Banerji invited to form a new Government with the United Front support. I told them that as the Assembly was to meet on the 14^th February, the question of relative strength of the parties could easily be decided on the floor of the Assembly. I pointed out to Shri Ajoy Kumar Mukherji that this was the identical advice I had given to him and only when the disregarded my advice that other action by me followed.  

Shri Ajoy Kumar Mukherji and Shri Jyoti Basu hereafter requested me not to address the joint session of the Assembly and the council on the 14^th February as they did not like any unseemly incidents to occur. I told them that I had certain constitutional obligations and they had to be discharged. Merely a danger of incidents could not deter me from discharging my constitutional obligations. There after after Shri Ajoy Kumar Mukherji and Shri Jyoti Basu urged that I should recommend to you the President’s rule because if the President’s rule could be introduced even for a day they would withdraw the agitation against the calling of the Assembly being illegal and would not mind if thereafter, if I thought that Dr. P.C. Ghosh enjoyed a majority, I invited him to form a government again.

            I told them that the question of President’s rule or some other action could be considered only after the Assembly had met. These matters could not be decided in advance.

             The first session of the State Legislature for 1968 was summoned by me on the advice of the Chief Minister to meet on the 14^th February, 1968. According to the Constitution I was required to address a joint sitting of both the Houses of the Legislature. After the legislature was summoned the leaders of the United Front declared that they would prevent me from entering the legislature and delivering my address and would do everything to disrupt the functioning of the Assembly. When I went to the Assembly to deliver my address a determined group of MLAs, belonging to the United Front demonstrated against me and attempted to prevent me from entering the legislative chamber through the usual entrance.  However, I was able to go into the legislative chamber by a side entrance and amidst great pandemonium began reading my address. I was able to read only a portion my address explaining the cause of summons and as because of the pandemonium there was no point in my continuing to read my address, I left the Chamber.

              A motion of thanks was thereafter proposed by one of the members of the council and seconded by another.

              He pointed out that the controversial Article was nothing but a rewritten version of the draconian section 93 of the Government India, Act 1953. “We have proved Churchill’s observation that Indian are not fit to rule themselves” he said

             “What we now have is a situation where a Chief Minister of state has to make 10 to 20  trips to Delhi every month and the opposition demands imposition of President’s Rule rather than stake a claim to form a stable government. Article 356 must go. The commission must recommend its removal, for Article 352 and 356 are sufficient” he said.  

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THE RETIREMENT DAYS: Book By R. B. Singh

POWERS OF GOVERNOR

An article written by R. B. Singh that was originally published in Our Leader (Allahabad edition) on October 17, 1993

    Shri Dharam Vira Governor of west Bengal dismissed Shree Ajoy Kumar Mukherjee from the Chief Ministership of West Bengal on Nov. 21, 1967 and dissolved his cabinet. He appointed Dr. P. C.  Ghosh, as Chief Minister of west Bengal and on his advice Shree Harendra Nath Majumdar and Dr. Ali Mullah as Ministers and sworn them the same evening. He summoned the legislature to meet on November, 29, 1967. When the Legislative Assembly met on the appointed day Shree Bijoy Kumar Banerjee, Speaker of the West Bengal Legislative Assembly gave the following ruling:

     “Honourable Members, this house meets under extraordinary circumstances. I am ‘prima facie’ satisfied that the dissolution of the Ministry headed by shree Ajo Kumar Mukherjee, appointment of Dr. P. C. Ghosh as Chief Minister and the summoning of this House on his advice is unconstitutional and invalid since it has been effected behind the back of this House. Pending a full and proper examination of the matter, in exercise of powers vested in me under Rule 15 of the Rules of Procedure of this assembly, I adjourn the House ‘sine die’.

     The House will remember that when it was prorogued on august 3, the Council of Ministers was headed by the Chief Minister Ajoy Kumar Mukherjee and others. This was the Council of Ministers that was collectively responsible to this House in terms of Article 164(2) of the Constitution.

     “As I understand the constitutional position, the only authority competent to decide whether or not a Council of Ministers should continue in office of this House. A adverse vote against the Council of Ministers in this House necessarily leads to a position when that particular Council of Ministers no longer enjoys the Confidence of this House and hence it continuance in office would be a violation of Article 164(2) of the Constitution.

PEOPLE’S RIGHT TO KNOW

An article written by R. B. Singh that was originally published in Our Leader (Allahabad edition) on October 6, 1993

There are difficult days, everyone is on te march with tremendous speed, Rajiv Gandhi Prime Minister of India used to talk of taking India to twenty first century but alas he is no more and talk of our march to twenty first century has ended; but our march towards it has not ended, we are daily marching towards it. In this march, we are coming across numerous hurdles, sometimes seem unsermountable. In between we hear the daily sermons coming from Prime Minister P. V. Narasimha Rao, former Prime Minister Viswanath Pratap Singh and Chandra Shekhar, from Leader of opposition Atal Bihari Vajpayee and former Leader of opposition Lal Krishna Advani, state leaders Jyoti Basu, Biju Patnaik, Laloo Prasad Yadav, Mulyam Singh Yadava    Continued ............................