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CAN ARTICLE 356 OF THE INDIAN CONSTITUTION HOLD UP AFTER 75 YEARS OF INDEPENDENCE?

THE FEDERAL SPIRIT AND ARTICLE 356: A FINE BALANCE

It is important to keep in mind that only the spirit of “cooperative federalism,” not a sense of superiority or dominance, can maintain the balance between the Union and the States and advance the welfare of the populace. No one entity may assert primacy within our constitutional framework. There is no one institution or branch of the government where sovereignty resides. A requirement for effective governance is the distribution of power among various organs and institutions.

Even though the Centre has been granted some power over the States, this dominance should only be used for direct, not indirect, reasons. “Article 356’s”[1] unique and extraordinary powers cannot be used to advance the interests of a political party or to topple a lawfully elected administration and a duly constituted Legislative Assembly. It’s possible that the results of such improper use won’t be obvious right away. However, they do not go unnoticed and eventually show their effects, some of which may be permanent.

Unfortunately, when dealing with the States over the years, the Centre hasn’t always remembered the idea of cooperative federalism or the purpose for which article 356 was enacted. As a result, the Centre has frequently grossly abused its authority under that provision. The said power was used more than 90 times between 1950 and 1994. Our claim is amply supported by the data found in Chapter 6 of the Sarkaria Commission Report, as well as the annexed Annexure VI (1–4) and the ruling of the Supreme Court in “S.R. Bommai v. UOI”[2]

The aforementioned Annexure demonstrates that the State Governments were ousted a number of times, even though they held a majority in the Assembly. In other cases, they were ousted without giving them the chance to demonstrate their power in front of the House. S.R. Bommai, the former CM of Karnataka, is a prime example of such abuse. Despite his request that the Governor give him a chance to quickly demonstrate his majority on the Assembly floor, the Governor refused to do so and instead suggested that his ministry be terminated. Naturally, the governor’s aforementioned behaviour drew harsh condemnation from the Supreme Court.[3]

JUDICIAL INTERPRETATION OF ARTICLE 356

You may recall that the Part related to emergency provisions contains Article 356. Although the word “emergency” or any of its variations is not used in the article itself, it is important to remember that it appears in the chapter that deals with emergencies. This serves only to highlight the peculiar nature of the aforementioned clause and to remind us of Dr Ambedkar’s wish that “such articles (articles 355[4] and 356) will never be brought into operation and that they would remain a dead letter.” The marginal heading of the aforementioned piece, which

“The authority granted by article 356 is a conditional authority; it is not an unfettered authority to be used at the President’s discretion. The requirement is the development of subjective satisfaction—without a doubt—that a circumstance of the kind envisioned by the paragraph has occurred. This satisfaction may be reached based on the Governor’s report, based on additional information he has received or based on both. A pre-requisite for the development of satisfaction is the presence of pertinent material. The word “may” implies not only a choice but also a responsibility to weigh the necessity and advisability of the action.

It also entails a duty to think through which, if any, and how far to take the various actions listed in subclauses (a), (b), and (c). It is not routine to dissolve the Legislative Assembly, even if it is legal to do so. It should only be used when absolutely essential to carry out the proclamation’s objectives. The permission of both Houses of Parliament is required before using the power. Both a check on the power and a defence against misuse of power is provided by clause (3).

DISSOLUTION OF LEGISLATIVE ASSEMBLY OF A STATE UNDER ARTICLE 356

According to the majority opinions, the President may dissolve a Legislative Assembly using the authority provided by Article 356 as long as both Houses of Parliament have approved the proclamation and take into account the purpose and design of the applicable constitutional provisions as well as the custom since 1950. Legislative Assembly dissolution is not directly mentioned in Article 356. (3). He can reportedly only keep the Legislative Assembly in suspended animation up until that point.

ARTICLE 356 IN ACTION

Despite the Ministry having the support of the Legislative Assembly in a majority of cases, President’s Rule was applied in 13 instances. These cover situations in which the provisions of article 356 were used to address issues between parties or for purposes not related to that article. The declaration of President’s Rule in Andhra Pradesh in January 1973 and Punjab in June 1951 are examples of when article 356 was used to resolve intra-party conflicts. President’s rule was imposed in Manipur in 1979 and Tamil Nadu in 1976 on the grounds that these States had poor administration.

B- There was no chance given to form an alternative Government

Other claimants were not given the opportunity to create a different administration and have their majority support tested in the Legislative Assembly on as many as 15 occasions when the Ministry resigned. The declaration of President’s rule in Uttar Pradesh in October 1970 and Kerala in March 1965 are examples of when other claimants were denied the chance to establish a government.

C- No caretaker Government formed

No caretaker Ministry was established in 3 instances where it was determined that it was impossible to form a workable government and that new elections were required.

D- President’s rule inevitable

Another category of dismissing State governments and State Legislative Assemblies completely must be added to the previously mentioned four categories. West Bengal, Rajasthan, Haryana, Punjab, H.P., U.P., Bihar, Orissa and M.P. State governments and Legislative Assemblies were dismissed/dissolved shortly after a new Lok Sabha was established following the general election held in March 1977, ushering in the Janta Party government. State governments and Legislative Assemblies in nine States were dismissed or disbanded once more in 1980 when the Congress Party regained control.[5]

NEED FOR AMENDING ARTICLE 356

It is debatable whether or not Article 356 needs to be changed. Even while it has been vehemently demanded that article 356 be removed, if it is done so while leaving articles 355 and 365 in place, the situation may escalate in the view of the States. In other words, the Central Government would be free to take action in the name of resolving a situation where the government of a State cannot be carried out in accordance with the provisions of the Constitution because the checks established by article 356 and in particular by clause (3) thereof would not exist. As a result, we oppose the deletion of article 356. The words “and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution” in Article 355 as well as the entirety of Article 365 must also be deleted if Article 356 (and the consequential article 357) are to be deleted. But what about Articles 256 and 257[6], which, while undoubtedly stating the obvious, may be omitted at the risk of drastically altering Centre-State Relations, according to the courts? Whatever the case, we believe that Art. 356 should not be deleted at this point in our constitutional development.[7]

SUGGESTIONS AND CONCLUSION

  • It should be stated that the Legislative Assembly cannot be dissolved before the proclamation issued in accordance with paragraph (1) of article 356 has received the approval of both Houses of Parliament. It can only be kept in animated suspension if necessary.
  • Before issuing the proclamation under clause (1), the President/the Central Government should notify the State Government of the instances in which the State Government is not acting in accordance with the Constitution’s provisions and provide it with a reasonable opportunity to correct the situation – unless the circumstance is such that taking the above action would not be in the interest of the security of the State or the defence of the nation.
  • To avoid the need-in clause, it shouldn’t be possible to withdraw a proclamation after it has been issued and issue another one with the same effect (3). The time period specified in clause (3) should be determined starting on the date of the first proclamation, even if a proclamation is replaced by another proclamation.

Author(s) Name: Khushi Mandal (Shreemati Nathibai Damodar Thackersey Women’s University Law School, Juhu, Mumbai, Maharashtra – 400049)

References:

[1] The Constitution of India, 1950, Art. 356

[2] AIR 1994 SC 1918

[3] Sanjay Ruparelia, Divided We Govern: Coalition Politics in India, (New York: Oxford University Press, 2015)

[4] The Constitution of India, 1950, Art. 355

[5] P. K. Chhibber and R. Verma, Ideology and Identity: The Changing Party Systems of  India, (New York: Oxford University Press, 2017)

[6] The Constitution of India, 1950, Art. 256, 257

[7] M. Laxmikant, Indian Polity. (New Delhi: McGraw Hill Education, 2013)