President’s Rule and the Legislative Council: more clarity required

The objective of President’s Rule can be neither furthered nor hindered by anaesthetising the Legislative Council.

The Hindu 20th March 2008

A Judge of the Karnataka High Court intercepted me during my morning walk and asked: “Why have you not held a session of the Legislative Council? That will add a new dimension to our constitutional jurisprudence.”

That is a question that has been asked by a countless number of people. Indeed, the Judge was referring to an ongoing public discussion in the wake of the imposition of President’s Rule in Karnataka. Does the Legislative Council cease to function while the Legislative Assembly is dissolved by the operation of Articles 356 and 357 of the Constitution?
Literal interpretation

Yes, say the literal interpreters of the Constitution. They argue that the Upper House is clinically dead but kept alive with life support during such a period. They are, quite rightly, guided by the wording in the Presidential Proclamation suspending several Articles of the Constitution: Article 174(1) and (2) which empower the Governor to summon each House of the Legislature and prorogue it; Article 194 dealing with the powers, privileges, and so on of the Legislature, its members and committees; Article 208 which empowers the framing of rules of procedure for the conduct of the Legislature; and, above all, the provision, 356(1)(b), which declares that “the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.”

This, they claim, extinguishes any activity of the Council notwithstanding what Article 172(2) declares: that the “Legislative Council of a State shall not be subject to dissolution.” On the other hand, the liberalist approach would argue that it could never have been the intention of the Constitution or even of the Home Ministry that the consequences of the suspension of the provisions just mentioned should visit the Legislative Council as well.

How does one understand the mandate that the Council “shall not” be subject to dissolution? An answer to this did not figure in the frank yet highly civilised dialogue with the Governor and others. India’s top lawyer F.S. Nariman tried to help them while inaugurating a seminar on the role and status of the Legislative Council: “There was a purpose in Article 172(2)... these words are of vital import. The message that is sent out by our Constitution is clear — that its members are expected to deliberate and continue to deliberate on a continuing basis... there is total lack of understanding of our Constitution.”
Continued deliberation

“Continued deliberation” could be: 1. A Council session convened for a limited purpose: limited in the absence of a whole range of governmental business as well as Question Hour, and so on; 2. It could be in the various committees exclusive to the Council (since the Assembly has been dissolved); 3. It could even be for a legitimate, formal consultation with the “executive committee” comprising the Governor, his Advisors and the Chief Secretary.

The Council could not be convened since Article 174 which empowers the Governor to “summon the House or each House of the Legislature of the State...” has been suspended. Significantly, “each House” can be summoned. In other words, the Council alone can be summoned if the reach of that disabling order was confined to the Assembly.
Simple modification

The Governor is perfectly right in expressing his helplessness in the matter. Since a functioning Council cannot be an obstacle to the working of President’s Rule, a simple modification to the Presidential Proclamation would have been proper. I believe that, in future, any unwarranted mechanistic listing of suspended Articles enveloping the Upper House would be avoided.

“But what prevents the functioning of our Committees on Petitions, Governmental Assurances, and Privileges?” ask the MLCs. Surely, Article 174 is not relevant here? Maybe, but the Governor has been advised thus: “When the Presidential Proclamation categorically states that all the functions of the Legislature [which undoubtedly includes Legislative Council] are taken over by Parliament, it is impossible to conceive that the Legislative Council could function simultaneously. The Committees of the Legislative Council being [an] extended wing of the Council, the said Committees also cannot function.”

The Advocate-General’s first opinion had categorically advised the Council to go ahead with its committees. Curiously, however, he changed it subsequently on the ground that the Proclamation took away “all the functions of the Legislature,” to be handled by Parliament.

But lo and behold, it does not. While the Proclamation refers to “all functions of the Government,” it clearly and in a separate paragraph refers only to “the powers of the Legislature,” and not to “all the functions of the Legislature.” The term “powers of the Legislature” can only mean the law-making power, and the Legislative Council does not, on its own, make laws. Committee work, on the other hand, is in a completely different category. Committees ought to continue against the background that the Legislative Council “shall not be subject to dissolution.”

Secondly, it will be untenable to keep the Council, in effect, in a state of “suspended animation.” That concept was formulated in Bommai (1994) and is applicable only to the Assembly.
Right of consultation

Finally, as to “consultation” with the MLCs of a living House, it is disturbing to be told that they have no explicit “right” of consultation.

“What earthly purpose will be served in continuing as Legislators of a House which cannot be dissolved and certainly cannot be ‘suspended’ like the Assembly but which is not allowed to function?”, is another question thrown at me by the MLCs. I have maintained a diplomatic silence.

The objective of President’s Rule is to prepare the ground for fresh elections to elect a new government which can function in accordance with the Constitution. That objective can be neither furthered nor hindered by anaesthetising the Legislative Council.

(The author is Chairman, Karnataka Legislative Council.)