Emergency Provision Calling for Emergency: A Critique of Article 356

Emergency Provision Calling for Emergency: A Critique of Article 356

‘Power tends to corrupt. Absolute power corrupts absolutely.’ – Lord Acton

Federalism, says Dicey, is a weak government because of the distribution of powers between the Centre and the units, but the war-time experiences of the U.S.A., Canada and Australia have shown that this is not necessarily so and that a federation can very well stand the test of time. As Corwin has asserted, “Federalism as a system of counterpoise is no longer viable in the field of war-making,” and that there is “incompatibility between the requirements of total war and principles thus far deemed to be fundamental to government under the Constitution”.

The provisions of Article 356 were highly debated in the constituent assembly. This provision was of Article 278 at the time of first draft of our constitution.

“Firstly, the president is empowered to act under Art. 278 not merely, if he gets the report from the governor or the ruler of the state but also otherwise. What that “otherwise” is, god only knows. It seems to be that we are not going about the business in an honest fashion. We are just liberated from foreign slavery sitting with dignity to frame the constitution of our motherland. After all, we have decided that the governor shall be the nominee of the president. If that were so, cannot the president have confidence in his own nominees? If no then let us just wind up our government and go home. It is a constitutional crime to empower the president to interfere otherwise”[1]

Moreover, it was the general expectation that Article 356 would be invoked in extreme situations and would not be utilised as a “surgical operation for a mere cold or catarrh”. The Founding Fathers shared the hope of Dr Ambedkar that this provision “will never be called into operation” and “would remain a dead letter”. Dr Ambedkar had assured the Assembly that “the first thing the President will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution….”[2]

The founding father of our constitution, Dr Ambedkar observed:

“I think it is agreed that our Constitution, notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces, nonetheless is a Federal Constitution and when we say that the Constitution is a Federal Constitution, it means this, that the Provinces are as sovereign1 in their field which is left to them by the Constitution, as the Centre is in the field which is assigned to it. In other words, barring the provisions which permit the Centre to override any legislation that may be passed by the Provinces, the Provinces have a plenary authority to make any law for the peace, order and good government of that Province. Now, when once the Constitution makes the provinces sovereign and gives them plenary powers to make any law for the peace order and good government of the Province, really speaking the intervention of the Centre or any other authority must be deemed to be barred, because that would be an invasion of the sovereign authority of the province. That is a fundamental proposition, which, I think, we must accept by reason of the fact that we have a Federal Constitution. That being so, if the Centre is to interfere in the administration of the provincial affairs, as we propose to authorise the Centre by virtue of Article 278 and Article 278-A, it must be by and under some obligation which the Constitution imposes upon the Centre. The invasion must not be an invasion which is wanton, arbitrary and unauthorised by law.”[3]

 

 

The S.R. Bommai’s Case[4] was a landmark judgement with regard to Article 356.

The Court ruled that Secularism is a basic feature of the Indian Constitution and nobody has any right to violate it. B.P. Jeevan Reddy, S.C. Agrawal, S.R. Pandian, J .J. held that “Secularism is one of the basic features of the Constitution …In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the Constitutional mandate and renders itself amenable to action under Article 356.”[5]

Soli J. Sorabjee also expressed the view regarding secularism is a basic feature. He queried, “Basic features are not static and there is no unanimity about their content and number even amongst lawyers and judges. Will judicial review be available in such case, or will it be declined because there are no judicially discoverable and manageable standards?”[6]

The Court stressed that Article 356 should be used very sparingly and as a last measure. S.R. Pandian and B.P. Jeevan Reddy, J.J. held, “The power under Article 356 should be used very sparingly and only when the President is fully satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the Constitutional balance.’

The Court interpreted Article 356 and ruled that the failure of State Government to comply with or to give effect to directions issued by Union Government are not the only grounds. B.P. Jeevan Reddy and S.C. Agrawal, J.J., held that “Article 356 merely says that in case of failure to comply with the directions given, ‘It shall be lawful· for the President to hold that the requisite type of situation has arisen … The President has to judge in each case whether it has so arisen.

The political parties are not willing to scrap this provision because of their end benefit when they become the ruling party as use this provision arbitrarily to destroy other state governments.

The arbitrary usage of Article 356 would result in destroying the federal nature of our constitution, which is also one of the basic features of the constitution. It needs to be remembered that only 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. Under our constitutional system, no single entity can claim superiority.

 

The theory deducted by way of construction of the Constitution has been an instant need of Indian constitutional system. The President and Parliament are found short in protecting the constitutional misuse for political purposes. It is now expected that the judicial weapon can preclude from abusing the provisions of the Constitution which have colourably been interpreted with their own line by the politicians.[7]

 

The demon of Article 356 has been working havoc in the past. It is necessary to put chains on this demon. The best chain would be striking down the Proclamation in appropriate cases and restoring these dissolved assemblies and ministries and thus establishing the supremacy of the Constitution[8]

 

The recent Hon’ble Supreme Court Judgement[9] restoring “Congress Government in Arunanchal Pradesh” has certainly been a setback for BJP and its dirty politics.

Commenting without any political bias, what BJP did in Arunachal and Uttrakhand is against constitutional morality, which is a part of basic structure. Central government should not interfere with state government matters unless and until that is the last resort available. This judgement is welcome and is a tight slap of BJP’s filthy politics.

Federal character of India should remain intact.

[1] Constitutional Assembly Debates, Vol. IX, p. 140
[2]  Ibid, p. 148
[3] Ibid, p. 158
[4] S.R. Bommai vs. Union of India. AIR, 1994, Supreme Court, 1918
[5] Supra Note 24, P 1919
[6] Sorabjee. Soli .1. ( 1994 ). "An Active Judiciary," Mainstream: New Delhi, vol. 32. no. 19. 26 March. 1994, p. 3
[7] Changing face of Art. 356, Law Resource India, Judicial Zeal and Zerk
[8] Dr Ambedkar and Article 356 of the Constitution, (1993) 4 SCC (Jour) 1
[9] https://drive.google.com/file/d/0BzXilfcxe7yuX3VYdi1UdGZSbWc/view

Written BY:
Karan Kumar Khetani