(Mis)using Article 356

There has been a full debate on Article 356 before the Sarkaria Commission, before the Supreme Court and before the inter-state council. The consensus is that we do need the Article but it should be used in the rarest of the rare cases, says Chandra Pal

CONSTITUTIONAL issues are inherently controversial but there is a striking unanimity of opinion on the persistent misuse of Article 356 of the Constitution, which empowers the President of India to impose President’s rule in states and dissolve (state) assemblies. Hence, it is rightly said that the power of "dissolution of the state assemblies points to a deep-seated anomaly in the Indian federal structure. The power of the President to dissolve state assemblies and to dismiss state governments under Article 356 is intended to be used only in emergency situations when other constitutional remedies fail to meet the threatening situation". Moreover, Article 356 comes under the emergency provisions of the Constitution, which means that the extraordinary powers under this article are to be exercised rarely and only in extremely abnormal situations when the state assembly and the government are unable to function according to the provisions of the Constitution.

Article 356 contains in it the Central power of a drastic nature to meet such an emergency situation as the breakdown of the constitutional machinery in a state. Hence the power of the President under Article 356 has a very important bearing on Centre-state relations. But, however, much drastic the character of the power under Article 356 may be, yet such a power is essential in order to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. Article 356, thus, is a necessary consequence of Article 355, which provides 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."

Even Dr B. R. Ambedkar did not explain the meaning of the expression ‘failure of the constitutional machinery’ in spite of the question raised by HN Kunzru in the Constituent Assembly. But Thakurdas Bhargava tried to explain when he said:

"No Constitution can be said to have failed to work unless and until all the provisions of the Constitution relating to the state are exhausted. In my humble opinion, as soon as such a situation arises, the first duty that the Governor will perform will be to dissolve the House. Unless and until every attempt has been made, and unless he finds that even the ordinary liberties cannot be enjoyed, he will not come to the conclusion that the Constitution has failed. I cannot conceive of a situation in which the Governor, first of all, shall not exercise the powers given to him by law, to arrange in such a way that the Constitution is worked."

The views of H. N. Kunzru also do not explain fully the meaning of the expression ‘failure of the constitutional machinery’ in a state. Thus, Naziruddin Ahmed was very right when he said that Article 356 "lacks clarity. It says practically nothing. It says almost everything. It enables the Centre to interfere on the slightest pretext and it may enable the Centre to refuse to interfere on the gravest occasion. So carefully guarded is its vagueness, so elusive is its draftsmanship that we cannot but admire the Drafting Committee for its vagueness and evasions."

Perhaps the most appropriate meaning of the expression ‘failure of the constitutional machinery’ has been provided by the Administrative Reforms Commission:

(a) "Where there has been a political break-down e.g. where a ministry has resigned and an alternative ministry cannot be formed without holding fresh elections, or where the party in majority refuses to form a ministry, and a coalition ministry cannot be formed;

(b) Where a ministry, although properly constituted, violates the provisions of the Constitution, or seeks to use its constitutional powers for purposes not authorised by the Constitution and other correctives and warnings fail;

(c) Where a state fails to comply with any direction given by the Union in the exercise of its executive power under any of the provisions of the Constituion."

In the State of Rajasthan v. Union of India case, Chief Justice Beg, while interpreting Article 356, observed:

"Our difficulty is that the language of Article 356 is so wide and loose that to circumscribe and confine it within a strait-jacket will not be just interpreting or construing it but will be Constitution-making legislation which, again, does not, strictly speaking, lie in our domain."

At another place Chief Justice Beg has sounded a note of suggestion for the development of conventions for the exercise of power under Article 356 and said:

"Undoubtedly, the subject is one on which appropriate and healthy conventions should develop so that the power under Article 356(1) is neither exercised capriciously nor arbitrarily when a political situation calls for its... And, it is not for courts to formulate, and much less to enforce a convention, however, necessary or just and proper to regulate the exercise of such an executive power. That is a matter entirely within the executive field of operation."

Thus, with Article 356 so widely and loosely worded, if over-ambitious politicians want to wield power throughout the country, both at the Centre as well as the state level, how can anyone protect federalism in India?

As noted earlier, under Article 356 a failure of constitutional machinery can be declared if the President, either on the basis of the report of the Governor 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 the Constitution. The original draft of the Constitution did not contain the word ‘otherwise’. When this word was included at a later stage, HV Kamath strongly opposed it and said:

"It is a constitutional crime to empower the President to interfere not merely on the report of the Governor or ruler of a State but otherwise. ‘Otherwise’ is a mischievous word. It is a diabolical word in this context and I pray to God that this will be deleted from this Article. If God does not intervene today, I am sure at no distant date He will intervene when things will take a more serious turn and the eyes of everyone of us will be more awake than they are today."

The Drafting Committee did not agree with this view and its Chairman, Ambedkar, justified the inclusion of the word ‘otherwise’ in Article 356 on the ground that in such situations the President should come on the scene from the very beginning and not after the suspension of the Constitution by the Governor as envisaged under Article 188 of the Draft Constitution.

Thus, Article 356 empowers the President even to act on his own initiative.

In the State of Rajasthan v. Union of India case, Justice Bhagwati has also conceded that the inclusion of the word ‘otherwise’ in Article 356 gave the President very drastic powers which, if misused or abused, can destroy the constitutional equilibrium between the Union and the states.

As against the expectations of Ambedkar, Article 356 neither remained a dead letter, nor was it sparingly used. Up to September, 1998, President’s rule has been imposed about 100 times in the states, including Union Territories. It has been imposed seven times in Orissa, six times in Punjab and UP, five times in Kerala and Bihar, four times in Rajasthan, Manipur, Pondicherry and West Bengal, thrice in Andhra and Gujarat, thrice in Haryana, Tripura, Mizoram, Tamil Nadu, Karnataka, Maharashtra and Travancore Cochin. It may also be noted here that Governor’s rule was also imposed in Jammu and Kashmir.

In recent years President’s rule was imposed in Nagaland (7.8.1988), Karnataka (4.4.1989), Meghalaya (11.11.1991), Uttar Pradesh (6.12.1992), Madhya Pradesh (8.12.1992), Himachal Pradesh (15.12.1992) and Rajasthan (15.12.1992). The constitutional validity of all these proclamations was challenged in the Supreme Court in the SR Bommai vs Union of India case.

This shows that the expectations of the founding-fathers of the Constitution that Article 356 would be most sparingly used have been completely belied. Ambedkar was emphatically of the view that the Centre could intervene "only when the government is not carried on in consonance with the provisions laid down for the constitutional government of the provinces. Whether there is a good government or not in the province is not for the Centre to determine." He was not unaware of the possibility of the abuse of these provisions but contended himself with expressing the hope that "they will never be brought into operation and they will remain a dead letter." Ambedkar lived to denounce, in the Rajya Sabha, the imposition of President’s rule in PEPSU in 1953 as "the most violent kind of rape on the Constitution". Thus, the gross abuse of the Centre’s power to take over the administration of state makes a mockery of the federal principle.

The only constitutional safeguard against the abuse of power under Article 356 is the satisfaction by Parliament as provided under clause 3 of this Article. Article 356(3) provides that "every proclamation issued under this Article shall be laid before each House of Parliament and shall, except where it is a proclamation revoking a previous proclamation, cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament." This safeguard is an illusory one, as experience has proved. So far there is not a single instance in which the imposition of President’s rule was not ratified by Parliament because the party which is in power at the Centre generally dominates in Parliament also by a majority vote. Furthermore, even a vote in Parliament that particular imposition of President’s rule in a state was wrong cannot repair the damage that is already done. In the long run this damage becomes much more serious and often unhealthy political trends are created. There is thus, no parliamentary control over the wrong exercise of this vast power under Article 356.

The only safeguard against the abuse of power under Article 356 is the judicial review. The Supreme Court’s judgement in 1977 in the case of State of Rajasthan v Union of India brought by some state governments against the Janata government’s dissolution of state legislatures broke new ground. It upheld the court’s right to strike down a proclamation imposing President’s rule if the action was mala fide or based on extraneous or irrelevant considerations, but, ordinarily court would keep away from political questions, in particular substituting its own judgement for that of executive.

Thus, it was a pioneering ruling but may not be regarded as the last word. Quite conceivably the court might widen the scope of its power of judicial review. It might insist, as it has in other cases, on "substantial evidence’ in support of the Centre’s charges against a state if the latter accuses the Centre of acting mala fide.

Furthermore, there are two fallouts of the 1977 judgement. First, that even though the dead could not be revived, that is, a dissolved state assembly could not be brought to life, the court would not read into the presidential powers limitations that did not clearly exist. This means that by issuing proclamations the Centre has committed no constitutional wrong. Second, that even if the presidential proclamation was not approved by Parliament, actions taken during the period of initial two months could not be invalidated.

From the above analysis of the power of the President to dissolve state assemblies under Article 356, the conclusion emerges that this provision which was intended to be a ‘safety valve’ by the framers of the Constitution has been used as a strong political weapon to do away with the government not of their choice in the state. What constitutional methods could be evolved to place a check upon the misuse of this power? This is a burning question which has of late been engaging the attention of the jurists in the country.

The Rajamanar Committee report and the memorandum of the West Bengal government on Centre-state relations have demanded the repeal of Article 356. But it will be an undesirable step to do so because in a country like India traditional factors like casteism, communalism, regionalism and linguism work as divisive forces and hinder the working of the federal system. Thus, the repeal of Article 356 "must lead to a steady weakening of the Centre" and "a weak Centre and strong states is to invite the balkanisation of this imperfectly united nation."

Already there has been a full debate on Article 356 before the Sarkaria Commission, before the Supreme Court and before the inter-state council. The consensus is that we do need the Article but it should be used in the rarest of the rare cases.