India and Nepal have a menu of bad options on the exercise of executive powers. History is full of incidents that show that every government in India and Nepal appointed their own party faithful and tailored their official business to suit their vested interest. 

Of late, Nepal’s Prime Minister K P Sharma Oli’s move of dissolution of the House of Representative, the lower house, is in the headlines. Constitutional experts, politicians and observers believe the dissolution of the house is in defiance of the constitution.

Dissolution ruled 'unconstitutional' 

On January 8, four former chief justices described the dissolution of the house as an “unconstitutional move.” Issuing a press statement, former chief justices Min Bahadur Raymajhi, Anup Raj Sharma, Kalyan Shrestha, and Sushila Karki said that the dissolution of the house on December 20 by the Prime Minister is against the constitutional spirit.

“Article 76 of the constitution does not confer any prerogative power on the Prime Minister to dissolve the parliament, except for the purpose or process of the formation of the council of ministers,” reads the statement. 

Article 76(7) of the constitution envisages the dissolution of the house if a government cannot be formed because no party has a majority in the house. Article 85(1) provides that the lower house, unless sooner dissolved, shall continue for five years. So, dissolution of the house is permissible only in the case where no party garners the majority to form the government. However, Oli-led Nepal Communist Party has a two-thirds majority in the house. Now, it’s up to the Supreme Court to decide the constitutional validity of the dissolution of the house. 

Still, the high voltage drama of the dissolution of the house is not a new political recipe for Nepalis. In 1994, Girija Prasad Koirala, whose party - Nepali Congress -enjoyed majority in the house dissolved the House of Representative following internal wrangling in his party. The apex had upheld the decision. Again, in 1995, now it was the turn of Manmohan Adhikari’s Communist Party of Nepal (Unified Marxist–Leninist - CPN-UML) majority government to dissolve the lower house. However, the only difference, in this case, was that the court overturned the dissolution and a new government was formed.   

Article 53(4) of the (erstwhile) Constitution of Nepal, 1990 says, “His Majesty may dissolve the House of Representatives on the recommendation of the Prime Minister. His Majesty shall, when so dissolving the House of Representatives, specify a date, to be within six months, for new elections to the House of Representatives.”  The 1990 Constitution allowed the prime minister to recommend for the dissolution of the house but the present constitution lacks a similar provision in letter and spirit. 

Indian experience 

Independent India has witnessed many chief ministers of opposition-ruled states crying foul over “misuse” of constitutional office by governors, who are appointed by the president on the recommendation of the Council of Ministers headed by the Prime Minister, to ‘serve the political interest’ of the ruling dispensation at the Center. 

In this context, the proclamation of emergency has been a very controversial matter in India since the day Article 356 (dealing with state emergency) was used for the first time by Jawaharlal Nehru government in June 1951 in Punjab. According to an RTI response from the Ministry of Home Affairs (MHA), President’s rule has been imposed 115 times till March 2016.

Presidential rule was imposed in nine states in 1977 after the Janata Party alliance came into power by succeeding Indira Gandhi-led government. In 1980, Congress again came into power and they gave a benefiting reply to the Janata government by dismissing nine state governments. 

“Prime Minister Indira Gandhi tops the chart of Indian Prime Minister’s who imposed the most number of Presidential rule upon states. During her tenure as the Indian PM from 1966-77, and 1980-84, it was imposed for a total of 50 times,” Indian Express had reported in its report.    

However, the exercise of emergency, powers become very controversial and questionable when a cabinet in a state having majority support in the provincial legislature is dismissed from office for an unobvious reason. 

Kerala was the first state to witness this situation in 1959. In 1957, the Communist Party came to power. Within two years, the Communist government started witnessing widespread discontent and the people started agitating on the streets. The prime minister advised the state ministry to resign and dissolve the house so that a fresh poll could be held but the cabinet did not heed this advice.

Then, on the receipt of the governor, the center invoked Article 356; dismissed the state government; and dissolved the state legislature. A new government took the office in early 1960 after a fresh election. The proclamation of emergency remained in force for around six months.  

More so, the president assumed the government of the state in Haryana in 1967 on the ground of large scale of defections of members of the state assembly from one party to another. 

The centre took over the state administration and carried it through governor in Patiala and East Punjab States Union (Pepsu) now Punjab (1951), Pepsu (1953), Andhra (1954), Cochin (1956) and Orissa (1961) after witnessing difficulty in forming a ministry, frequent resignation of the existing ministry, the defection of leaders on the floor of the legislature, and minimal scope for a viable ministry in the sight.

Again in 1966, New Delhi dissolved the state assembly of Punjab to smoothen the bifurcation process of the state of Punjab into states of Punjab and Haryana. Similarly, Rajasthan too witnessed the same fate in 1967 because of difficulty in forming ministry. “In 1968, due to instability of coalition ministries, the UP legislature was first suspended and later dissolved. And, in the same year, Bihar and Punjab legislature were also dissolved under Article 356 owing to Ministerial crisis,” writes scholar and writer M P Jain in his popular work Indian Constitutional Law.  

In 1974, the Gujarat assembly was dissolved following the resignation of the entire ministry. In 1975 and 1976, the states of UP and Gujarat, respectively, too faced the same situation. Shockingly, the Tamil Nadu legislature was dissolved in 1976 as the governor reported the center with the charge of corruption, maladministration, misuse of power. Not only that, a high-powered commission was installed on the recommendation of the governor by the center to enquire into the alleged corruption charges.

A very dramatic incident of state emergency occurred in 1977.  “In the General Election held for Lok Sabha in 1977, after the revocation of emergency imposed in 1975, people gave vent to their anger against the imposition of emergency. This led to the landslide victory of the Janata Party which formed the Central Government. The Congress party was badly routed. There were at the time nine Congress party-ruled States. The Janata Government at the Center invoked Article 356 in April 1977 and dismissed the nine State Governments, dissolved the State Assemblies and held the fresh election thereto,” further writes MP Jain in his book. 

Shockingly, media reports claim that Indira Gandhi-led government between 1966 and 1977 activated Article 356, 39 times in different states in order to gain the title of an “iron-lady” for no good reason. 

The high voltage drama of emergency came to the floor in the state of UP on December 6, 1992, the date on which the Ram Janambhoomi-Babri Masjid disputed structure was demolished by the volunteers of the Hindu nationalistic party, Bharatiya Janata Party (BJP) and its sister organizations. The central government invoked Article 356 also in BJP-ruled states of Madhya Pradesh, Rajasthan, and Himachal Pradesh. This step taken by the center was supported by all the opposition parties in the parliament.

In a dramatic move, the Janata Dal (United) in February 2015 expelled Bihar chief minister Jitan Ram Manjhi from the party and appointed Nitish Kumar as the chief of the legislative party. Manjhi appealed to governor Keshari Nath Tripathi to dissolve the state assembly in the anticipation of the political crisis in the state. The governor then asked Manjhi to prove majority in the house, but Manjhi quit the post on the day of voting and Nitish Kumar took the oath of office.

The episode continued in March 2016 as well in Uttarakhand when the governor reported to the president for proclamation without giving an opportunity to then chief minister Harish Rawat to prove confidence in the house. governor’s action was challenged in the Nainital High Court. And, the Court gave direction for a floor test to prove the majority. It is incomprehensible how a floor test could be ordered when the assembly is put under suspended animation.    

In yet another incident of Goa in 2017, the Congress with Nationalist Congress Party (NCP) had 18 seats in the legislative assembly while the BJP was short of a majority. Although Congress was on the driver’s seat to form the government (with just short of three MLAs), still the governor paved the way for the formation of a BJP coalition government (with Maharashtrawadi Gomantak Party (MGP), Goa Forward Party, and three independent MLAs). The issue became a hotcake when it came out that the incumbent Goa governor had sought advice from Arun Jaitley, the then Union Finance Minister, which is constitutionally unsound. 

Landmark judgments

Although Dr B R Ambedkar, the father of the Indian constitution, believed that Article 356 would be in reality a “dead letter”, the courts in India have to arrive with decisions on a number of occasions to curb the arbitrary exercise of president. 

The Supreme Court of India by overruling its own decision of State of Rajasthan v. Union of India (1977) held in the case of SR Bommai v. Union of India (1994) that the presidential proclamation under Article 356 is subject to judicial review and that it is not an absolute but a conditional power and that no Assembly can be dissolved before both Houses of parliament ratify the proclamation. The imposition of Presidential rule and dissolution of State Assembly cannot be done together, the SC further held. 

In a groundbreaking verdict, the top court in the case of Rameshwar Prasad v. State of Bihar (2006) held that the governor has no power to decide the majority of state legislative Assembly. He is supposed to play a role in forming a government of a party or parties enjoying majority or confidence in House and the deciding place for the matter is only the floor of the house, not the Raj Bhavan (Governor House). 

Political turmoil

These incidents show that the people of India and Nepal have witnessed political turmoil at the whims and fancies of their leadership. Presidential rules were imposed in Rajasthan, Karnataka, and many other states of India without giving option for floor test in the legislative assembly.

Nepal’s story is not much different than that of India’s. Nepal’s prime ministers - Girija Prasad Koirala (1994), Manmohan Adhikari (1995), and K P Sharma Oli (2020-) have taken steps to dissolve the house despite their parties’ being in majority. These examples clearly show that democratic norms, values, and constitutionalism could be compromised by leaders in power to serve their vested political interests.

(Jivesh Jha, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. He can be contacted at jhajivesh@gmail.com.  Alok Kumar Yadav is Assistant Professor of Law at HNB Garhwal Central University, Srinagar, Uttarakhand, India. The views are personal)