Article: 356 the Controversy - Indian Polity | Additional Study Material for UPSC PDF Download

Incorporated in the Constitution to enable the Union Government to deal with one of the three types of emergency  situations that the framers of the Constitution visualized might threaten Indian polity, Article 356 has remained one of the most controversial and highly misused provisions of the Indian Constitution so far. Not surprisingly, the Sarkaria Commission described it as the roughest edge in Centre-State relations in India. Contained in Part XVIII of the Constitution dealing with Emergency Provisions, it deals with 'Provisions in case of failure of constitutional machinery in States'. It states. "If the President, on receipt of a 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 provisions of this Constitution, the President may by Proclamation :

1. assume of himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State;
2. declare that the power of the Legislature of the State shall be exercisable by or under the authority of Parliament;
3. 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."

Thus, the determination of 'failure of constitutional machinery in the State' and the proclamation of President's rule under Article 356 are dependent upon "Presidential satisfaction" on a "report" from the Governor or "otherwise" (independently) that "a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the constitution." State governments and on most occasions, the dismissal was on partisan political ground than on sound constitutional and administrative grounds.

Misuse of Art. 356

The first use of Article 356 was made on 20 June 1951, in Punjab, where the Legislative Assembly was suspended for nearly 10 months. The reason was that Chief Minister G.C. Bhargava had refused to constitute his Cabinet on the directives of the Congress High Command. The Centre used this provision within 18 months of the promulgation of the Constitution to sort out an intra-party affair of the Congress. Thus, on the first opportunity the assurance of Dr. Ambedkar regarding the Article remaining a dead letter was demolished. The second major indiscretion in the use of this Article came in July 1959, when the Communist Party-allied government was dismissed in Kerala and the Assembly was dissolved at the instance of Congress President Mrs. Indira Gandhi.

The misuse of this provision in 19 cases during 1967-72, the first phase of coalition politics in the country, has been discussed at length in academic debates. It needs to be highlighted here that first time the ascendancy of the Congress party was challenged, the provision was grossly  misused to serve the Centre. By dissolving Legislative Assemblies in nine Congress-ruled States by one stroke of pen in April 1977, the Janata Party government showed that political parties of all hues were prone to misuse this provision. Naturally, when on her return to power in January 1980, Mrs. Indira Gandhi paid them back in the same coin, using the same logic, they could not protest. The spirit of the Constitution of India was nonetheless, the victim again.

Reasons Generally Cited for Invoking Art. 356

Obviously, if the use of this provision of the Constitution is analysed, case by case, there will be more instances of its use for partisan political ends than for genuine reasons of breakdown of constitutional machinery.

Let us omit cases of blatant misuse of Article 356 either out of political vendetta or as a political weapon to serve the interest of the party in power in the Union or under the pretext that the party in power in the State suffered humiliating defeat in a Lok Sabha election.

The first ground cited relates to what was called the breakdown of law and order. Problems of law and order happen everywhere. When it becomes so grave that it  cannot be controlled by the state government it should be open to the State concerned to seek the help of the Union, as in the Constitution of America and as indicated in Article 355 of our Constitution. If the internal disturbance acquires the dimension of an armed rebellion the proper course would be a proclamation of emergency in the affected territory under Article 352 of the Constitution. Matter of law and order does not amount in any case to failure of constitutional machinery.

The second ground often invoked is corruption and maladministration. The Union government may be sore about such a development. But that is no ground to dislodge a government installed by public verdict and answerable to the electorate. If the Union government can have the right to stamp out a State government from power on that account, State governments may also ask the Union government to step down when corruption and maladministration become rampant in the Union government.

Another ground light-heartedly resorted to, is political instability. This is no reason at all. Instability is inherent to the parliamentary system. The Supreme Court in S.R. Bommai vs Union of India ruled that the political instability invoked in respect of the States of Karnataka, Meghalaya and Nagaland was not a valid ground. Further, political instability is not a problem of the Union, but that of the Governor, who is the constitutional head of the State and has to handle the situation as per the traditions of the Parliamentary democracy. In this connection the statement of Governor of Punjab on 7 March, 1947 under the Government of India Act, 1935 is quite enlightening. "Constitutionally, no Province can be without a government for any appreciable time. When a Ministry resigns, the normal course is for its members to remain in office until their successors are ready to take over.

On this occasion if the Coalition Ministers decide not to remain in office, the gap caused by their departure must be filled and the only possible method of filling it immediately is by a proclamation under the Government of India Act of 1935 transferring all responsibility to the Governor."

If ministries after ministries are voted out of power, and the Governor comes to the conclusion that the Assembly has to be dissolved, he can do so, if the last ministry has tendered such an advice which would be usually the case. Otherwise there will be a deadlock, because the current opinion is that the Governor cannot dissolve the Assembly without such advice. In all cases of dissolution he will have of course to order immediately fresh elections and in the meantime the ministry will continue as a caretaker government.

A curious practice has appeared nowadays: the Governor asks the Chief Minister chosen by him to prove his majority in the House within a stipulated time. This will indicate that the Governor has not made his choice properly. He is not bound to offer power for the sake of staking claim. Further a minority government can very well remain in place until a no confidence motion is tabled and passed.

It is true that the lack of discipline and decorum among public hampers the smooth working of the system. Resort to violence within the precincts of the Assembly, or refusal of the Chief Minister to step down when a criminal charge is impending or even framed or undue influence on M.L.A.s by promise of portfolio or large amount of money shatters the parliamentary system. But they are themselves no reason to invoke Art. 356. The recourse to Art 356 will be justified only if no caretaker ministry may be put in place,or when election in immediate future is not possible. It emerges from the review of past experiences that even one of the circumstances invoked so far do not amount to failure of constitutional machinery contemplate in the constitution and that the proclamations by the President were violative of the constitution.

Remedies

Of the two remedies available, to tackle the misuse of this Article—scrapping of this provision and building safeguards to protect State autonomy the latter is preferred by most political parties and jurists. The thirteen recommendations made by the Sarkaria Commission to check the misuse of Article 356 are in the category of reforms. On scrutiny, it appears that the Commission skirted the basic issue behind its misuse — partisan politics. For example, the first sentence of its first recommendation sounds like the assurances given in the Constituent Assembly. It reads, ‘Article 356 should be used very sparingly, in extreme cases, as measure of last resort, when all available alternatives fail to prevent or rectify a breakdown of constitutional machinery in the State.’ In fact, caution, care and discretion as part of the recommendation is reflected in the Constituent Assembly debates as well and clearly they have not worked due to the reasons of realpolitik.

The Inter-State Council meeting on 17 June 1997, too voiced right kind of concerns, but seemingly missed basic issue in the use of Article 356. It also discussed safeguards like issue of a show cause notice prior to the proclamation and the approval of the proclamation by the Parliament by a two-third majority. The question is, whether these measures would work, or they would prove to be superficial and cosmetic changes that would be overtaken by partisan politics.

Two questions need to be answered by those who think that the proposed reforms and remedial measures would check the misuse of Article 356. First, is it possible to check the misuse of this provision unless appropriate changes are introduced in the office of the Governor. Second whether the emergency provisions contained in Article 352-355 and Article 365 are not enough to take care of the fears of disintegration that shaped Article 356.

Conclusion

In the last few years, there has been much criticism regarding the misuse of Article 356. There is no doubt that it has been used by political parties in power at the Centre against the Opposition ruled State governments. Thus, many people now have started demanding that the Article 356 be deleted from the Constitution.

However, it should not be forgotten that without this Article, the functioning of government in certain circumstances would become impossible.

What exactly we need today to do is to ensure that the application of Article 356 is not politically motivated, and its use severely restricted. Perhaps it is time for the parties to come to a broad agreement on the real intent of Ar ticle 356 to Indian Constitution.