The Use of Article 356 - Essay, UPSC MAINS | Course for UPPSC Preparation - UPPSC (UP) PDF Download

The Use of Article 356

structure

(1) Opening    —    Abused by the party in power.

(2) Body    —    Four pertinent issues.

    —    The History 

    —    Dr. Ambedkar's view.

    —    Article 356 and the Court.

    —    S.R. Bommiai case and the Supreme Court.

    —    The BJP and the allies position.

(3) Closing    —    Magnanimity seldom reflects reality.

The exercise of power under Article 356 of our Constitution is widely debated in legislatures, discussed by the mass media and investigated by research scholars and eminent jurists. The acknowledged fact is that Article 356 has been abused by the party in power at the Centre for its own political advantage rather than to fulfil constitutional obligations. Nevertheless, the demand for dismissal of State Governments under Article 356 is repeatedly raised by certain political parties with the sinister design of taking revenge against their political enemies as well as for escaping from corruption charges.

There is a pesistant demand of invoking of Article 356.

In this cauldron of challenges, four issues are pertinent: What is meant by the failure of the Constitutional machinery? Is the incorporation of the Article consonant with federalism? Is it possible for the present Government at the Centre to invoke the Article and get it passed in both Houses of Parliament? And, lastly, what is the implication of the latest judgment of the Supreme Court (S. R. Bommai case) in this regard?

“Failure of constitutional machinery” was an “innovation” of the colonial rulers of India. The British Colonists introduced Section 45 in the Government of India Act, 1935, for take over of the administration of the Federal Government by the Governor-General and Section 93 with similar powers for the Governor of a Province to dissolve the Provincial Assembly under the Pretext of failure of the constitutional machinery. 

The All India Congress opposed these sections tooth and nail and after its landslide victory in the elections in 1937, the Congress asked for an assurance from Linlithgow, the Governor General of India, that the Governor of a Province would not be allowed to exercise powers under Section 93. But the answer from the Governor-General was negative even after a personal meeting with Gandhiji. However, the Congress asserted that it would fight against the exercise of such power from within and assured the nation that it would never incorporate such a section in the Constitution of Independent India.

Contrary to its earlier stance, the Congress introduced the clause for taking over the administration of the States by the Centre at the initiative of K. M. Munshi. What is alarming and deplorable is that Article 356 is more dangerous and despotic than Section 93 of the Government of India Act, 1935.

H. V. Kamath, who firmly opposed this Article during the debate in the Constituent Assembly, had exposed the dubious policy of the Congress as follow:

“Public order had been made expressly a responsibility of the State Government. Now, the crux of the matter is this: You say that the State must maintain public order. But through a new Article 277A, you say that the Union Government shall protect every State against internal disturbance. Let us be honest about what we are going to do. It is no use of having mental reservations on this important point. If we are going to whittle down political autonomy, let us say so in the Constitution. Let us make no bone out of it. It is dishonest on our part to say in one Article that public order shall be the responsibility of the State and then in another Article to confer powers upon the Union to intervene in the internal affairs of the State on the slightest pretext of any internal disturbance”.

Dr. Ambedkar, one of the architects of our Constitution, entrusted with responsibility of defending the policy of the Government, was unable to give a plausible explanation as to what was meant by the failure of the constitutional machinery. Breakdown of law and order is totally different from failure of the constitutional machinery. The former is failure or inability of the Home Department to resolve a law and order problem, but the latter is collapse of the entire administration of the State in all spheres. In the case of law and order, it is the constitutional duty of the Centre to extend all cooperation and help to curb violence or disorder either by deploying any force or any other measure sought by the State Government.

If the situation continues to be anarchic and uncontrollable, the question of failure of the constitutional machinery arises of invoking Article 356. Seldom do we witness such situation in any State.

There is no provision in our Constitution to recall representatives of the people for any reason before the stipulated period of five years. But the misuse of power under Article 356 amounts to recall of duly-elected representative, which is quite contrary to the very federal structure of the Constitution.

Had there been no such Article in our Constitution, the political parties which cry for removal of duly-elected Governments enjoying absolute majority would go to the people and wait for their verdict. Instead, now, they are loitering in the corridors of South Block, New Delhi, with the threat of withdrawal of their support.

The apex court had been refusing to admit any case challenging the proclamation under Article 356, up to the late Seventies. But a new era dawned after the judgment in the Rajasthan Case in 1977. The majority of the Judges held that “the proclamation could be challenged on the ground that the satisfaction was mala fide or founded on a ground extraneous to that specified in Article 356 (1), because in either case, there was, in law, now satisfaction of the President at all”,

After the 44th Amendment Act 1978, in A. K. Ray's case, the Supreme Court held that the proclamation under Article 356 (1) was now open to judicial review on the grounds of illegality, impropriety or mala fide, or in short, “abuse of power”,

No doubt, Article 356 itself is vague and gray in certain areas. It has not defined what is failure of the constitutional machinery? It is silent and has not provided any remedy, if the proclamation is not approved by both the Houses of Parliament.

These lacunae were being exploited by the parties in power at the Centre against the States which were under the administration of other parties.

The apex court gradually came forward to admit the cases and courageously pronounced its judgments, giving certain observations so as to arrest the abuse of Article 356. In this regard, the judgment in  the S. R. Bommai case is a ‘landmark and guide post’.

In the S. R. Bommai case, the Supreme Court enumerated certain situations which may not amount to failure of the constitutional machinery in the States and where the use of Article 356 will be improper. Some of them are relevant here:

(1) Imposition of President's Rule in a situation of mal-administration by a Ministry enjoying majority support in the Assembly will be extraneous to the parties for which the power under Article 356 has been conferred. It was made clear by the framers of the Constitution that Article 356 is not meant to be exercised for the purpose of securing good Government.

(2) Just because the ruling party in the State has suffered a defeat in the elections to the Lok Sabha, Article 356 cannot be invoked for dissolving the State Legislative Assembly.

(3) In a situation of internal disturbance, not amounting to abdication of government powers of the State Government, possible measures should be taken by the Union under Article 355. Before invoking Article 356, the Union should exhaust the powers under Article 355.

(4) In the cases of internal subversion, physical breakdown and non-compliance with constitutional directions of the Union Government, the use of the power under Article 356 will be improper if the President gives no prior warning or opportunity to the State Government to correct itself. Such a warning can be dispensed with only in cases of extreme urgency.

(5) Article 356 cannot be involved where in response to the warning or notice or direction applied the corrective measures and complied with the directions or satisfied the Union Executive that the warning or direction was based on incorrect facts.

(6) To exercise this power for the purpose of extraneous or irrelevant ones would be vitiated by legal mala fides.

In addition to these observation, it has been 

ointed out that “Democracy and federalism are the essential features of our Constitution and are part of the basic structure. Any interpretation that is placed under Article 356 must therefore help to preserve and not to subvert their favourites.”

Moreover, the judgment emphatically state that “the provisions of Clause (3) of Article 356 are obviously meant to be a check by parliament on the powers of the President under Clause (1) of the said Article. The check would be meaningless and render ineffective, if the President takes irreversible actions while exercising his powers under Sub-Clauses (a), (b) and (c) of Clause (1) of the said Article.”

Even if it is argued that it would be consistent with the scheme and spirit of the Constitution, particularly in the absence of a specific provision in the Constitution expressly empowering the President to dissolve the legislature, Mr. Justice Jeevan Reddy and Mr. Justice Agrawal observed that “this power of dissolution can be exercised by the President only after both the Houses of Parliament approved the proclamation and not before such approval.”

Above all, the Supreme Court unambiguously declared that “the dissolution of the Assembly prior to the approval of the proclamation by the Parliament under Clause (3) of the said Article would be per se invalid.”

It is explicit that as per the judgment of the apex court, no State Government with the required majority could be easily removed by the Centre under the pretext of law and order, internal disturbance, corruption, defeat in the Lok Sabha election etc.

To give effect to the proclamation under Article 356, the approval of both Houses of Parliament has become a must. Lack of ratification will lead to restoration of the dissolved House.

In politics, magnanimity seldom reflects reality, but often arises out of necessity.