Explainer : The Law Used To Bypass Cabinet Decision To Revoke President's Rule In Maharashtra

Explainer : The Law Used To Bypass Cabinet Decision To Revoke President

The tussle for power in Maharashtra among BJP, Congress, Shivsena and NCP, continued for weeks post the assembly election result. BJP, which emerged as the single largest party, could not stake a claim for the government owing to disagreement on equal sharing of power with its former ally, Shiv Sena.

Since every party had failed to prove the majority, President's rule was imposed on November 12, 2019. On November 22 night, there were reports that an alliance of Shiv Sena, NCP and Congress will soon form the government. But to the utter shock of everyone, on next day morning, BJP formed government claiming support from NCP MLAs. Hours before the Oath Ceremony, President's rule was revoked at 5:47 am under Rule 12 of the Government of India (Transaction of Bussiness) 1961.

This article will primarily focus on the provision which empowers the Prime Minister to revoke the President's rule in Maharashtra without the approval of the Cabinet.

Provision Invoked

The provision invoked for revoking proclamation of President's rule by the Prime Minister is Rule 12 of the Government of India (Transaction of Bussiness (ToB)) 1961. The provision states that

"To meet a situation of extreme urgency or unforeseen contingency in any particular case, Rule 12 of the Government of India (Transaction of Business) Rules, 1961 empowers the Prime Minister to permit or condone a departure from these rules, to the extent deemed necessary.

In such situations also, the process of examination and inter-ministerial consultations would need to be followed. All cases under Rule 12 are mandatorily required to be routed through the Cabinet Secretary and should, in no case, be sent directly to the Prime Minister.

The following guidelines are required to be followed in cases where rule 12 is proposed to be invoked:

a) proposals shall be moved only by the administrative Ministry/ Department concerned with the subject, under the Government of India (Allocation of Business) Rules, 1961;

b) proposals shall be accompanied by a detailed justification clearly bringing out the urgency involved in the matter and the exceptional circumstances that require it to be processed under Rule 12 along with a statement specifying the reasons, why it could not be processed for obtaining the approval of the competent authority in time;

c) Secretary of the Department/Ministry will ensure that all essential requirements including inter-ministerial consultations have been met before submitting the proposals for approval under this rule. This fact is to be mentioned in the proposal submitted for approval under Rule 12;

d) the Ministry/Department concerned shall route the proposal through the Cabinet Secretary after obtaining the approval of the Minister-in-charge in all cases and also of the Minister of Finance in matters involving outgo of funds, or other concerned Ministers, where the subject matter impinges on their business"

The genesis of the Provision

Article 77 of the Indian Constitution has the heading "Conduct of the Business of Government of India".

This shows that under this article the function of the Government of India regarding its business is stipulated. Clause 3 of the said Article states that "the President shall make rules for the more convenient transaction of the business of the government of India, and for the allocation among Ministers of the said business".

The Government of India (Transaction of Business) Rules 1961 has been framed under Article 77(3). The power to make rules of Business under the clause may be traced from Article 53(1) which says that the executive power of the union shall be exercised by the President directly or officers subordinate to him in accordance with the constitution, and Article 74(1), under which he is required to discharge his functions with the aid and advice of the Council of the Ministers. This means that the decisions of the Government of India are not always taken personally by the President. The decision may be taken by the Minister concerned or even the Official authorized to take the decision under the Rules of Business made by the president under Article 77(3). It has been held in a number of cases that the working of the government will stop if all the decisions were required to be taken by the President or even by the Ministers.

Article 77(3) of the Constitution, for better administration, makes two provisions:

  1. Empowering president to frame rules for the smooth-running transaction of government business;
  2. Allocating the said business among the ministers

Rules made under (1) are the rules of business pertaining to administration. Under these rules officials authorized are able to take decisions on behalf of the Ministers concerned. Minister has overall control of the business taken by the department but practically the majority of decisions are taken by the authorized officers. The endorsement through the signature of the minister approves the work.

Analysis of the Rule dispensing special power to the Prime Minister

A thorough reading of the rules in the draft will make it crystal clear that the rules are mostly concerned with the operation of the ministries. It lays down the rules for the efficient working within the ministry for better administration and redressal of the issues. It also embodies in its second schedule cases which require the approval of the Cabinet, to name a few, it includes cases related to legislation including the issue of ordinances, cases in which a difference of opinion arises between two or more Ministers and a Cabinet decision is desired, Proposals to vary or reverse a decision previously taken by the Cabinet, etc.

One among these rules is Rule 12 of the ToB, it says that

"The Rule 12 says: "Departure from Rules- The Prime Minister may, in any case, or classes of cases, permit or condone a departure from these rules, to the extent he deems necessary".

The words "to the extent he deems it necessary" bestow discretionary power on the Prime Minister.

It empowers the Prime Minister to permit or condone a departure from these rules to the extent deemed necessary to meet a situation of extreme urgency or unforeseen contingency in any particular case. In the case of Maharashtra, in the absence of any government, the governor has to act as per the advice of Council of Ministers under Article 163(2) but in this particular case there was no government; thus, the governor cannot act as to the advice of the Council of Ministers. Hence, as per the report of the Governor, President's rule was imposed in Maharashtra. To revoke President's rule in Maharashtra, a proposal was to be forwarded by the Union Cabinet.

The Central Government invoked special power under Rule 12 of ToB, 1961, to bypass the requirement of a Cabinet meeting to be done before revoking President's rule.

(The author is a third year BA LL.B student of National University of Study and Research in Law, Ranchi)