Article 371: Constitutional Implications

By P. KODANDA RAO, M.A.

The Government of Mysore announced on the 13th November 1951 that they had reached an honourable compromise with the Government of India over the Directive under Article 371 in the Raju case. The Government of India would withdraw the Directive ordering the transfer of the case to another State, while the Government of Mysore would agree to import a Sessions Judge from another State. Further, the Government of India would exempt the Mysore State from the operation of Article 371 in the next few weeks. It was a wise surrender on the part of the Mysore Government, if only because it staved off a greater constitutional crisis. The wisdom of the action of the Government of India and of the compromise, however, is open to question, both with regard to the particular case and the exemption from Article 371.

To take up the case first. What was the occasion for the Government of India’s intervention? Some of the accused, including the principal accused, Mr. Raju, had apprehensions that they would not get a fair trial in the Mysore State because the Chief Justice was the complainant and a witness for the police prosecution in the case. The Mysore Government saw no adequate reason to exercise the discretionary power vested in them under the Indian Constitution to seek a transfer of the case to another State. Subsequently, the Government of India advised the Mysore Government either to transfer the case or import a judge from another State who would not be under the influence of the Mysore Government and High Court. The Mysore Government declined the advice. Whereupon the Government of India issued the Directive under Article.371. Finally, the Mysore Government agreed to import a judge rather than transfer the case.

Would the importation of a judge serve the purpose which the accused and the Government of India seem to have in common? No objection may be raised in any quarter to the fact that the imported judge would have to be technically under the jurisdiction of the Mysore Government and the Mysore High Court. But, should there be an appeal from the judgment of the imported judge, it would in the first instance be to the Mysore High Court. The purpose of the accused and the Government of India is not merely technical, but substantial. It is more probable than improbable that the accused would plead that they would not get a fair trial on appeal in the Mysore High Court. Further, the Government of India would not have over-ridden the Mysore Government if they were satisfied with the bona fides of the latter. If their insinuation, however diplomatically concealed, was that the Mysore Government, and perhaps the Mysore High Court, were interested in denying a fair trial to the accused in this particular case, have they made sure that the Mysore Government, left to themselves, would not import an accommodating judge? If the satisfaction of the accused be the principal concern and if the Government of India cannot trust the Mysore Government in this matter, it is best that the case is transferred to another and distant State, far removed from the influence of the Mysore Government and the local communal and personal influences. It is best to transfer the case to the Supreme Court itself, if that be possible, so that justice to the greater satisfaction of the accused may be done and also seem to be done, as they say. Once the Mysore Government submitted to the censure and the dictation of the Government of India, it should make no difference to them if the trial is held in some other State. It is best to transfer the case now, than later as the result of another Directive from the Government of India.

Had the Government of India constitutional or statutory power to intervene in this case? The question arose during the debate in Parliament on the 8th February 1951, when Mr. C. Rajagopalachari, then Home Minister, moved a Bill to extend the Criminal Procedure Code to the Part B States, namely, the erstwhile Indian States. Under the Code, which at the time applied to Pact A States only, the power to secure the transfer of cases from one State to another vested in the Governments of the States, and the Central Government had no such and concurrent power. At the last moment, at “the eleventh or twelfth hour” as he put it, Mr. Anantasayanam Ayyangar suggested at the Central Government should have concurrent power to withdraw cases, or transfer them from one State to another. Mr. Rajagopalachari opposed the suggestion on merits. He observed:

“At present I feel, and I think that most Members of the Supreme Court and the High courts would resent any powers being taken by the executive government as such to transfer or withdraw cases in the manner suggested by Mr. Anantasayanam Ayyangar....The redistribution of powers as between, in the first place, the executive government and the judiciary, and between the States and the Government of India, should not, I think, come in a Bill of this nature, and there would be grave objection to it…..I do not think we can incorporate in this Bill the provision that he has suggested, both because of the respect that we should show to the judiciary and from the point of view of the respect that we should show to distribution of powers. I think that we should not reopen that question now. The emphasis which Mr. Anantasayanam Ayyangar laid was entirely on the powers that we should reserve for the executive to withdraw prosecutions. I think the less we reserve in that way the better on the whole.”

But Mr. Anantasayanam Ayyangar would not be denied. He pressed his plea that such power was necessary, for “there are exceptional cases arising out of purely political considerations”. He had instances, which he did not want to state before the House, in which various people were oppressed. But Mr. Rajagopalachari was unmoved. He said:

“So that the position may not be left in doubt, I have to make it clear that I stand unconvinced. Every criminal does feel oppressed when the law is moved against him, and I do not think it would be proper for us not only to apply ourlaw to the B States, but also for the first time introduce a new principle by which the executive government at the Centre could take power to transfer cases from one court to another within another B State or from one State to another. It would not be welcomed by the Supreme Court.”

Soon after the lunch interval, however, Mr. Rajagopalachari announced that, as the result of discussion at an informal committee during the interval, he had agreed to Mr. Anantasayanam Ayyangar’s proposal that power should be reserved for the Central Government to transfer cases, and that he would himself move such an amendment on behalf of the Government! This was a complete change of front, not-withstanding that there was no corresponding change in the situation as it stood before lunch, regarding the respect due to the distribution of powers between the Centre and the States and the respect due to the judiciary. Mr. Rajagopalachari, however, did not accept the proposal that the Centre should have power to withdraw cases, a proposal in which Mr. Anantasayanam Ayyangar was more interested.

Several Members of Parliament pressed that the power to transfer cases should vest in the Supreme Court and not in the Central Government. Mr. Venkataraman said:

“If we are really going to give power to transfer cases from one State to another, the proper authority which can have that power should be the Supreme Court and not the Central Government. In fact, I can envisage a situation where there will be a lot of political pressure being brought to bear on the Minister in charge of that department; he will also be subject to interpellations in this House as to why a particular right was exercised or not exercised.”

Dr. Bakshi Tek Chand, who was formerly the Chief Justice of the Punjab High Court and spoke with special authority, supported Mr. Venkataraman’s suggestion. He urged that Mr. Rajagopalachari’s amendment would sanction “interference with judicial procedure by the executive”, which, in his opinion was of a very objectionable character.

Mr. Rajagopalachari was not willing to give the power of transfer to the Supreme Court, partly because, in his opinion, the question of transfer concerned public opinion rather than the judiciary, and partly because the Supreme Court was not consulted. He, however, said that if the power was misused by the Central Government, he would support the motion that the Supreme Court should exercise the power. He declined to give an assurance that, irrespective of the working of his amendment, he would as soon as possible, transfer the power to the Supreme Court. Mr. Ethirajulu Naidu of Mysore, who apparently knew more of the ground of the proposals of Mr. Anantasayanam Ayyangar and Mr. Rajagopalachari, said:

“The question is: are we going to have the rule of law or are we going to have the rule of the executive?....The point is whether the Supreme Court is to be the final arbiter, or whether it should get mixed up with politics and the executive should decide the matter….If the Hon. Home Minister is not prepared to confer the power on the Supreme Court without consulting it, this matter may be deferred and can be dealt with separately.”

Though Mr. Anantasayanam Ayyangar was himself agreeable to vesting the power of transfer in the Supreme Court, Mr. Rajagopalachari was not. He said: either the Central Government or none. Other Members insisted : either the Supreme Court or none.

Realising the intensity of the opposition to his proposal, Mr. Rajagopalachari asked permission of the House to withdraw his amendment. Surprisingly enough, he was refused permission! Instead, it was put to the vote and defeated! While it was an ungracious rebuff to the venerable and illustrious Home Minister, it emphasised the intensity of opposition to vesting in the Central Government the pOwer to transfer cases. Nevertheless, this was the very power that the Government of India exercised in the Raju case, and sought the oblique authority of Article 371 of the Constitution for it. To do an act which Parliament had so emphatically and unequivocally forbidden is, to say the least, contempt of Parliament: was like Certification of old. It would have been a shade less objectionable if the Government of India had ordered the withdrawal of the case, for that power was not asked by Government and denied by Parliament. And withdrawal would have been more satisfactory to the accused and to Mr. Anantasayanam Ayyangar, and no more censorious of the Mysore Government and judiciary.

Between the 8th February 1951, when the debate on the Criminal Procedure Code took place, and the 3rd November, when the Directive was issued, there was enough time for the Government of India to consult the Supreme Court, the High Courts and the Governments of the States, as well as all others concerned, about the advisability of vesting in the Supreme Court the power of transfer of cases from State to State, and to enact suitable legislation under Article 140 of the Constitution and Sec. 527 of the Criminal Procedure Code. Except for Mr. Rajagopalachari, opinion was unanimous in Parliament in favour of investing the power in the Supreme Court. If suitable action had been taken in time, while the correspondence about the Raju case was proceeding, the Supreme Court would have been seized of the matter, and the Government of India saved from having to invoke Article 371. As Messrs. Anantasayanam Ayyangar and Rajagopalachari said, such cases of transfer would be very exceptional and would not cast a heavy burden on the Supreme Court, which would itself lay down rules of procedure regarding such cases. Would it be uncharitable to suggest that the Government of India were bent on exercising the power themselves by hook or crook, and were averse to vesting it in the Supreme Court?

Was the use of Article 371 in the Raju case justified? According to the speech of Sardar Patel, read for him by Mr. Munshi in the Constituent assembly on the 12th October 1949, it was not intended to interfere in the day-to-day administration of any State. The Sardar said:

“We do not wish to interfere with the day-to-day administration of any of the States. We are ourselves most anxious that the people of the States should learn from experience. The Article is essentially in the nature of a safety-valve to obviate recourse to drastic remedies such as the provisions for the break-down of constitutional machinery.”

Was the intervention of the Government of India in the Raju case intended to act as a safety-valve to obviate an impending constitutional break-down?

Regarding Mysore, the Sardar said:

“It is quite obvious that in this matter, the States, e. g., Mysore, and Travancore-Cochin Union, where democratic institutions have been functioning for a long time and where Governments responsible to legislatures have been functioning for a long time, have to be treated differently from the States not conforming to these standards. In all these cases our control will be exercised in varying degrees according to the requirements of each case. The proviso to the Article gives us the necessary discretion to deal with each on its merits.”

Representatives of Mysore and Travancore-Cochin pleaded at the time that these States should then and there be excluded from the Article on the admitted ground that they were not less advanced than the Provinces. Replying to the debate, Mr. Munshi said:

“It has already been stated in the Statement (of Sardar Patel) and I am free to admit my personal opinion, that so far as Mysore and the Union of Travancore-Cochin are concerned, whose affairs I know personally, I see no reason why they should attract Article 306 B (since 371) unless they fall from that steady and stable administration which they have inherited from the Dewans of the past, and I am glad to say that the present set-up there promises to maintain the tradition.”

The application of Article 371 to Mysore can be due to either of two reasons: a fall in the Mysore administration, or failure of the Central Government to honour their pledge. If the former, it is a censure on the Mysore Government. It is a matter of opinion whether the censure was deserved or not, particularly in comparison with States like Madras, Bombay and even the Centre itself. Granting that the Government of India had the necessary constitutional and legal authority to issue the Directive, it must not be in utter violation of the political assurances of Sardar Patel at the time. It may be that in a court of law, the assurances of a Minister have no relevance, but the executive, which initiates the Presidential Directive, may not treat the assurances of previous Ministers as scraps of paper. If law is just law, it was open to the Government of India to order the withdrawal of the Raju case and the dismissal of the Mysore Government and the Mysore High Court! But such a course would not be considered reasonable and appropriate even by the hot-gospellers of “law is law” and of Shylock’s plea, “it is in the bond”.

But the legality of the Directive in the Raju case may not be above question, while the legality of the action of the Mysore Government in not seeking to transfer the case is not open to question at all. The judiciary is expected to consider the reasonableness of an act with
reference to the spirit of the law and not merely its letter. It is quite possible that the Supreme Court may hold that Article 371 was not intended to refer to matters outside the Constitution, that under the Constitution the power to transfer was vested in the States, and that, in any event, the use of Article 371 in the present instance was malafide inasmuch as it was used, rather perverted, for the purpose of defying the clear mandate of Parliament.

What was the moral justification for the President’s Directive? It was said that the ends of justice called for it, for justice should not only be done but seem to be done. In the present case, some of the accused apprehended that they would not get a fair trial in Mysore. The Government of Mysore, which is on the spot as it were and was directly and exclusively concerned, did not share the apprehension. But the Government of India, who are far away and were not concerned, apparently did. In issuing the Directive, the Government of India overstepped their constitutional and legal limits, defied Parliament, and ignored their assurance that Article 371 would not be applied to Mysore except to avoid a constitutional break-down. The Government of India must have very strong and overpowering reasons for such an extraordinary action. What were they? If they want their action to be appreciated properly, they should publish all the relevant correspondence between them and the Mysore Government and the representation they might have received from other quarters, if any. The Mysore Law Association, which post facto supported the Government of India’s action, was not unanimous about it. Some members walked out in protest.

As far as the ends of justice are concerned, the accused in the Raju case have all the Fundamental Rights which the Constitution gives. They have the right of appeal to the Supreme Court. The inevitable delay and expense and vexation are not peculiar to this particular case. Nor can it be presumed that cases like the Raju one are peculiar to Mysore, and cannot and do not occur in Part A States but to which Article 371 does not apply. Indeed, Mr. Anantasayananm Ayyangar said that there was a plurality of cases, and not only one cage. His amendments would have applied to all the States, whether A or B. Similarly, Mr. Rajagopalachari's amendment would apply to all States. If there were more cases than one, what happened to the others? Did any of them take place in A States? And, if so, did the Government of India look on helplessly? They could have prevented possible injustice if they had at least secured power to the Supreme Court to transfer cases from one State to another.

Now that the Government of India have exempted Mysore from the operation of Article 371, did they presume that there would never be other cases like the Raju case in that State, and that there would be no further need to invoke Article 371 in the interest of pure justice? Should a case of the kind, recur after the exemption, what will the Government of India do?

The solicitude of the Government for pure and unalloyed justice might have been more convincing if they had secured the separation of the executive and judicial functions throughout the Union. The reform was urged by the Indian National Congress since its birth. If there be any validity in the argument that the combination of the two functions is not conducive to pure justice, it would seem that the Purna Swaraj Government of India, even under the Indian National Congress, have not secured justice to all people. Indeed, some of the top Congressmen had questioned the need for the separation of the functions.

If the Government of India were tolerating injustices because of the failure to separate the functions, it they were tolerating cases like the Raju case in Part A States, and if they propose to tolerate such cases in Mysore hereafter by exempting it from Article 371, would it mean that Mr. Anantasayanam Ayyangar and Mr. Rajagopalachari had in view only the Raju case and no other, when they proposed their amendments to the Criminal Procedure Code? If so, they might have sought special legislation to deal with that one case. It would not be open to greater objection than the present Directive under Article 371.

It is very undesirable that Mysore should be exempted from Article 371. Other States are sure to make a similar demand, which it will be difficult to resist. Instead of exempting any or all of the Part B States, Article 371 should be applied to all States, including A and B. Incidentally, it will abolish irritating and humiliating discrimination between the two types of States, and at the same time retain power with the Government of India to intervene, if and when necessary.

India has embarked on national planning. The need for co-ordination of policies and administration in an ever-increasing number of matters is being increasingly felt. Further, it is not always possible that the political party in power at the Centre will also be in power in the States. In both these contingencies, which are more probable than improbable, co-ordination between the States, and between the Centre and the States, may not always be possible by persuasion. A single State, standing on its constitutional al1tonomy, can handicap national policies by non-co-operation. The Centre should have over-riding powers to ensure co-ordination and co-operation for national ends. Article 371 should be retained permanently and applied to all States. It will mean that the Centre will gain at the expense of the States. All realists acknowledge its inevitability.

But it will be necessary that the Government of India should use it for truly national purposes, not covered by law nor prohibited by it, and not for lesser and other purposes, communal or personal. Their intervention should not only he for bona fide national ends, but, as they say of justice, seem to be so. Their intervention in the Raju case is und to make the bona fides of the Government of India suspect, and may gather momentum for the elimination of Article 371 even in Part B States earlier than ten years. That would be a misfortune.

At the same time, the Supreme Court should be empowered to transfer, or even withdraw, cases, if and when it deems fit in the interests of justice. Since opinion seems to be unanimous about its desirability, it may be possible to secure it by an Ordinance immediately after consulting all the parties concerned.

It is satisfying to watch some of the hot-gospellers of federation, in the sense of the division of sovereignty between the Centre and the States, gradually, if reluctantly, realising the folly of federation and accommodating themselves to increased centralisation. If the Government of India exercise supervisory power over the States under Article 371, and the Supreme Court does similarly over the judiciary in all the States, it will be a great step forward towards the restoration of unitary Government in India, which may well be accompanied by extensive delegation of powers to the States. Time and tide are with a sovereign Centre delegating powers to subordinate States, and not with the division of sovereignty between the Centre and the States.