Article 356 and an activist Judiciary

• In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed, and in the next place oblige it to control itself,’ said James Madison.

What is Article 356?

• Article 356 of the Constitution of India is based on Section 93 of the Government of India Act, 1935.
• According to Article 356, President’s Rule can be imposed on any state of India on the grounds of the failure of the constitutional machinery.
• This is of two types:

1. If the President receives a report from the state’s Governor or otherwise is convinced or satisfied that the state’s situation is such that the state government cannot carry on the governance according to the provisions of the Constitution.
2. Article 365: As per this Article, President’s Rule can be imposed if any state fails to comply with all directions given by the Union on matters it is empowered to.

• In simple words, President’s Rule is when the state government is suspended and the central government directly administers the state through the office of the governor (centrally appointed).

It is also called ‘State Emergency’ or ‘Constitutional Emergency’.

What is the recent issue of Judicial Activism in Andhra Pradesh?

• 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 look more like an executive order transferring IAS officers.
• 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.

Reason for the inclusion of Article 356

• No liberal democratic Constitution in the world has a provision such as an Article 356 that gives the central government the power to dismiss a democratically-elected State government except the Constitution of Pakistan.
• Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
• Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it; thus, Section 93 of the Government of India Act, 1935 was never brought into effect.
• The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
• On June 11, 1947, it was agreed in the Constituent Assembly that the Governor could use this emergency power.
• By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre.

The power of the word “otherwise”

• After several revisions, the provision became Article 278 (now Article 356).
• Provisions in case of failure of constitutional machinery in State: “If the President, on receipt of a report from the Governor of the State or ‘otherwise’, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with he provisions of this Constitution, the President may by Proclamation…..”
• H.V. Kamath termed it as a surgical operation for a mere cold. He criticised the word ‘otherwise’ and said only god knows what ‘otherwise’ means.
• ‘Otherwise’ can include anything including a presidential dream of the breakdown of constitutional machinery in a state.
• The Andhra Pradesh High Court could pass such an order due to this very term ‘otherwise’.
• But for this word which negates the ideals of constitutionalism by giving unlimited powers to the Centre, the High Court could not have overstepped the line as it did.
• But this is not the first instance of judicial overreach on this issue. On August 13, 1997, a Patna High Court Bench of Chief Justice B.M. Lal and Justice S.K. Singh while disapproving the functioning of the Rabri Devi government had observed that the Governor’s report was not conclusive regarding the invocation of Article 356, and the High Court could also report to the President about the breakdown of constitutional machinery in the State.

Instances of use/ misuse of Article 356

• 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 in respect of the Kalyan Singh government in Uttar Pradesh which had just won the controversial confidence vote and stated that the imposition of President’s Rule would be constitutional impropriety.
• He also returned the cabinet’s recommendation on September 25, 1998, in respect of the Rabri Devi government in Bihar, and in an unprecedented detailed note, rebutted all the charges made by Governor Sunder Singh Bhandari.

What are the incidences of invocation of Article 356

• In the very first invocation of Article 356 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 and Governor B. Ramakrishna Rao in his report argued that the government had lost ‘support of [the] overwhelming majority of people and belittled the fact of it enjoying the confidence of [the] House which he said was an important consideration at the time of formation of government, not its continuance. Strange logic indeed.
• Indira Gandhi has the dubious distinction of using Article 356 as many as 27 times, and in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc. She did not spare even Chief Ministers of her own party.
• But the Janata government did worse than Mrs Gandhi by removing nine majorities Congress governments in one stroke on April 30, 1977.
• The Supreme Court of India upheld it in the State of Rajasthan v. Union of India (1977). Mrs Gandhi replied in the same currency on her return to power in 1980 by removing nine Opposition majority governments at one go.
• Subsequent governments too acted in similar fashion including the Narendra Modi government which invoked Article 356 in Arunachal Pradesh on Republic Day itself, in 2016.
• The most notable case of nonuse of Article 356 was the refusal of the P.V. Narasimha Rao government prior to the demolition of the Babri Masjid on December 6, 1992, as in the draft Constitution, emergency power could be used to safeguard the ‘legitimate interests of minorities and the government was fully aware of a breakdown of constitutional machinery in Uttar Pradesh.
• However, the subsequent dismissal of three Bharatiya Janata Party governments in Madhya Pradesh, Rajasthan and Himachal Pradesh, though upheld by the Supreme Court in S.R. Bommai v. Union of India (1994) was wrong as the Rashtriya Swayamsevak Sangh ban was better implemented in these States and much greater violence had taken place in the Congress-ruled States of Gujarat and Maharashtra.

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