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Insights into Editorial: Article 356 and an activist judiciary

article_356

 

Context:

The recent order of the Andhra Pradesh High Court directing the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’ is shocking as it opens up the possibility of use or even misuse of Article 356 by the judiciary.

Though the Supreme Court of India has stayed the order, we need to go deeper into this observation and look at the controversial provision of Article 356 because of which the High Court could make such an observation. The devil is in the provision itself.

Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself as it would encourage the government to appoint committed judges.

Sometimes even the collegium’s recommendations on transfer of judges and chief justices today looks more like an executive order transferring IAS officers.

Background of the article 356:

  1. Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
  2. Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it.
  3. The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
  4. It was agreed in the Constituent Assembly that the Governor could use this emergency power.
  5. By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre.
  6. After several revisions, provision became Article 278 (now Article 356).

The record:

Article 356 has been used/misused more than 125 times though B.R. Ambedkar had assured that it would remain a dead letter.

Both on Article 356 and the Governor, experience has proven Ambedkar wrong. In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States.

All Presidents signed presidential proclamations without demur except K.R. Narayanan who twice returned the cabinet’s recommendation on October 22, 1997.

The issue with the word ‘otherwise’ for Article 356:

  1. V. Kamath criticised the word ‘otherwise’ and said only god knows what ‘otherwise’ means.
  2. As the Governor had been made a nominee of the Centre by this time, he asked why the President could not have confidence in his own nominees.
  3. ‘Otherwise’ can include anything including a presidential dream of breakdown of constitutional machinery in a state.
  4. The Andhra Pradesh High Court could pass such an order due to this very term ‘otherwise’.
  5. This word negates the ideals of constitutionalism by giving unlimited powers to the Centre, also allowed the High Court to overstepped the line.
  6. But this is not the first instance of judicial overreach on this issue.
  7. On August 13, 1997, a Patna High Court had observed that the High Court could also report to the President about the breakdown of constitutional machinery in the State.

President’s Rule Article 355 & Article 365:

Article 355 states that it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.

Article 356 states that President rule can be imposed in any state on grounds of failure of Constitutional Machinery, and failure is of two types:-

If President on receipt of report by Governor of a State or otherwise is satisfied that a situation has arisen in which govt of that state can’t be carried in accordance with provisions of the Constitution then President Rule can be imposed.

Article 365 states that every state shall comply with all directions given by Union on matters it empowers to do so. If any state fails to comply with directions of union then President Rule can be imposed.

Article 163 says that Governor has to be advised by Council of Ministers to discharge his functions but in case of any question arises under which Governor has to act in his discretion according to constitution then decision of governor shall be final.

This discretionary power of Governor under Article 163 is one of the major reasons behind misuse of president rule in India because he has no binding to consult Council of Ministers while preparing and sending the report to President.

Way Forward:

  1. In order for the smooth functioning of democratic government and strengthening the spirit of federalism, it is important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.
  2. In this context, the recommendations of the Sarkaria Commission and Punchhi Commission should be followed in true spirit.
  3. The President’s Proclamation should include the ‘reasons’ as to why the State cannot be run as per the normal provisions of the Constitution.
  4. As far as possible, the Centre should issue a warning to the State government before resorting to the use of Art. 356.
  5. It should not be used to serve political purposes.
  6. 356 should be amended so that the President be empowered to dissolve the State Legislature only after approval by the Parliament.
  7. On the question of invoking Article 356 in case of failure of Constitutional machinery in States, the Punchhi Commission would recommend suitable amendments to incorporate the guidelines set forth in the landmark judgement of the Supreme Court inR. Bommai V. Union of India (1994).
  8. The Punchhi Commission recommended provision of ‘Localized Emergency’ which means that centre govt can tackle issue at town/district level without dissolving the state legislative assembly while at same time carrying out duty of the Union to protect States under Article 355.

Conclusion:

Today, when many constitutional experts are of the view that the judiciary is increasingly becoming more executive-minded than the executive itself, the observations of the Andhra Pradesh High Court are a worrisome sign.

The spirit of “cooperative federalism” can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority.

The role of governor in this regard is indispensable for the successful working of the constitutional democracy which will ensure proper utilisation of provisions of article 356.

Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.