ARTICLE 356 AND JUDICIAL ACTIVISM

GS 2 Indian Constitution—significant provisions and basic structure.

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.

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.

Judicial activism:

 An approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.

  • 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.

 Historical Background:

  • In 1951, Jawaharlal Nehru removed the Gopi Chand Bhargava ministry in Punjab though he enjoyed the majority.
  • In 1959, it was used against the majority opposition government of the E.M.S. Namboodripad government in Kerala.
  • Indira Gandhi used this Article 356 for 27 times.
  • In most of the cases she removed majority governments on the grounds of political stability, absence of clear mandate or withdrawal of support, etc.
  • Subsequent governments too acted in similar fashion.
  • The most notable case of “non-use of Article 356” was the refusal of the P.V. Narasimha Rao government though it was fully aware of a breakdown of constitutional machinery in Uttar Pradesh.
  • The Narendra Modi government which invoked Article 356 in Arunachal Pradesh on Republic Day itself, in 2016.

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.

Present scenario:

  • Article 356 has been used/misused more than 125 times
  • In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States.
  • 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.

Assembly debates :

  1. In the Constituent Assembly debates, members were divided in their opinions on Article 356.
  2. The main bone of contention was the use of word “Otherwise” and subjected to lot of interpretations.
  3. The member Alladi Krishnaswami justified the provision in the name of representative government at the Centre.
  4. Another member Shibban Lal Saksena agreed with Parliament’s power to ratify President’s Rule in States.
  5. But he mentioned that this provision reduces the autonomy of the states.
  6. Laxmi Kant Maitra & T Prakasam argued that Indian Governors would not behave like British Governors who acted as agents of the Centre.
  7. The rest of the members were mostly taking a stand against it.
  8. H.V. Kamath said the term “Otherwise” can include anything including a presidential dream of breakdown of constitutional machinery in a state.
  9. Naziruddin Ahmad stated that drafting committee had become a ‘Drifting Committee’ as it had gone against the original draft.
  10. P.S. Deshmukh too favoured deletion of the term ‘otherwise’ as it will be misused by the union government.
  11. Later this provision was incorporated in the Constitution in the name of democracy, federalism and stability.
  12. B.R. Ambedkar assured that article 356 would remain a dead letter but it was used/misused more than 125 times.
  13. Subsequent decades proved all of them wrong both in respect of Governors as well as the central government.

Andhra Pradesh High Court order:

  • The Court passed such order due to the term ‘otherwise’ in article 356 but Supreme Court stayed this order.
  •  collegium’s recommendations on transfer of judges and chief justices looks more like an executive order.
  • Constitutional experts view that the judiciary is increasingly becoming more executive-minded than the executive itself.
  • Hence the word ‘otherwise’ should be deleted from Article 356& it must be used sparingly.
  • Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself.

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.

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