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Article 356 in The Constitution Of India 1949
Article 256 in The Constitution Of India 1949
The Constitution Of India 1949

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Central India Law Quarterly
Article 356: Should It Be Scrapped
ARTICLE 356: SHOULD IT BE SCRAPPED ? Santosh Kumar Singh'" "Power tends to corrupt and absolute power Corrupts absolutely". • Lord Aldon Prologue The Journey of highly controversial Art. 356 has passed through many rough routes, and suffered many ruthless strokes -of time, due to which it has failed to reach its destination in true sense. They are still striving hard to have their exhaustive and comprehensive meaning and definite interpretations. Therefore. the purpose of the-present study is to critically evaluate various aspects of Art. 356 in order to give them an integrated and systematic treatment in the clinic of law and judiciary. The past five decades have seen a running debate -over the question whether the retained or -scrapped of -Article 356 of the-constitution. It has been repeatedly used with a vengeance by the ruling party at the centre against opposition _ ruled states. It was never liked by opposition parties. The framers of our constitution had conceived Article 356 as defensive weapon". However, POhtlcalpartles have nrne and aga," used It to SUIt their own purpose-triggering the question whether it should be scrapped. A meaningful debate on the Union Government's power to impose central rule in a .state _is expected now following the president's request to the UnIOn cabinet to reconsider its advee to promulgate Article 356 to suspend the Bihar Legislative -Assembly. Obviously a closer look at the SUfJr~l/I~ Court's nine juuy~ i.J~II(,;i1 juuy,"~"i ill Ihe S.R. DUIllIlli:ti case is needed wrncn Interprets Art. 356. Lastly however, there has been a visible shift of political opinion in favour of amending it or even scrapping it to ensure the survival of popularly elected state governments.· The issue was referred in 1997 to the standing committee of·the inter-state council, revived by the united front government. Aggrieved political parties has repeatedly sought iudicial Intervention at the highest levels and secured reliet in varying measures in different cases against -malafide action by the centre. The Home Minister LK Advani has suggested a national debate on the question of retaining or scrapping Art 356-a powerful handle to the Union government to dismiss any state government. Assemblies had been repeatedly • LL.M. (B.H.U.) lecturer in law in Patna law college P.V. VoI.XIII] ARTICLE 356 255 dissolved or kept under suspended animation thanks to complaint state governors to suit the political interests of their bosses at the centre. IF.THE PRESIDENT, On redeipt of a report from the governor of a state or otherwise.: is satisfied that a situation has arisen in which the government of the state can not be carried on in accordance with the provisions of the constitution, the President may be . proclamation- (a) assume to himself all or any of the functions of the government of the state and all or any· of the powers vested in or exercisable by the governor or anybody or authority in the State other than the legislature of the state, (b) declare that the powers of the legislature of the state shall. be exercisable by or under the authority otpariiament; (c) make such incidental and consequential provisions as appear to the President to be necessary.." As per the provisions of the constitution, the President acts on a Governor's report or "otherwise" when he is "satisfied" that a situation has arisen due to the breakdown of the oonstitutional machinery in which the government of the state can no longer be carried on by constitutionally provided means (i.e. by the dUly elected ministers). President's assent to a prectarnanon under Article 356 becomes amenable to JudICial scrutiny. Thus, .it becomes an independent duty of the President also to be fully satisfied with the material supplied bv the cabinet for imposinQcentral rule in a particular state list his approval itself comes for judicial criticism. That mlQht one of the reasons for the President to reter back to the cabinet its decisionto suspend the Bihar Assembly so that the proclamation must stand ihe juuiciai test, ii needed. Unlike in the past when Article 356 was used at the whims and fancies of the party in power at the centre, its use has become rather stringent now. Unlike in the past when a dismissed state government had no remedy once presidential an are felt on it, an aggrieved government can now look tor its restoration. if the counts nnds the promUlgation malafide or ordered on an extraneous consideration. At different periods of time since 1950. to 1997 the Union Government used Art-356 as many as 107 times. Ihe maxmurn use of this provision, which founding father of the constitution Ur. H.H. Ambedkar was sure that Art. 356 would remain a "dead letter" and chances ot its being invoked would be very rare. But, whichever party or coalition cameto power at the centre found Art. 356 dear to its heart. 256 CENTRAL INDIA LAW QUARTERLY [2000 The term "otherwise} would mean that for bringing a stafe under the President's rule (as it is know in common parlance) the President need not depend only on the report of the Governor but could also act on the information received from other reliable sources like some Union Minister or the advice of the council of Ministers. In this context, Chief Justice 8.M, Lal and justice S.K, Singh of Patna High Court expressed their opinion that right of recommendation of the Presidential's rule is not only vested in State Governor under Art. 356. Thus, The High Court also can recommend. tnthe perspect of that verdict, the certain constitutionalist is of opinion that right relating to Art. 356 is barely inherent in the governor or the President. Some experts say that me term "otherwise" is significant which denote other reliable sources under Art. 356. In this context, Art 355 and Art. 356 ibid also deserve a quick took. Art 355 says "It shall be the dUty of the uruon to protect every state acamst external aqoression and Internal disturbance and to ensure that the government et every state IS cameo on in accordance with the provisions ot tl1is constitution". ror drscharcma this responsibility, the uruon government will have to depend upon the report ot the Governor and on being convinced about the contents ot the report, Invoke Art. 356, and beIng the state under President's rule. In tact, recommendations ot the Sarkaria Commission, which looked into the centre-State relations, have been ignored by all the governments and political parties, The Supreme Court in its Bommai Judgment has also reiterated that the Sarkaria Commission recommendations on Art. 356 must given effect to. Importantly, the commission has listed the various situations which should not warrant promulgation of President's rule. It would be improper of a state government is dismissed on the ground of "maladministeration". Tne purpose of Art. ;job, the commission says, is not meant to secure good governance. Also, the commission feels that Art. 356 should not be used against a State Government which is accused of corruption. However, the Sarkaria Commission cautions against the use of the promision merely to invite fresh elections in a state. Therefore, Art. 356 as also the highly-recommended commission's suggestions are on test. . The present president has proved that in spite of having Art. 356 in the statute book, unjustified imposing of President's ruie shouid not be encourged. Earlier, he returned the recommendation seat by the Gujrat VoI.XIII] ARTICLE 356 257 Government about the dismissal of the Kalyan Singh Governmerit in U.P. and now the recommendation of the Vajpayee Government in respect of the Rababri Devi Government in Bihar. In both the cases, the Prime Ministers did not think it advisable to send back the recommendations once again to the President in which case the. President could not have refused to aecepUhem. While Gujral's decision not be press his cabinet's recommendation on the issue of imposing president's rule in U.P. is now history, it is better left without comment. But in the present case, after a lot of noise, the Vajpayee Government -decided not to send back the·.recommendation after reconsidering the proposal in respect of the Rabri Devi~overnment. The reason was simple, if the proclamation was issued then it wouldhave to be ratified by both the Houses of parliament within the stipulated period of 2 months, otherwise she would come back as Cpief Minister. By not re- submitting the recommendation to the Prestdent, the Prime Minister and his party caueaoues could now iQnore the demands of Jayalahtha to dismiss the Karunanidhl Government and that ot Mamatal:ianel]ee to dismiss the West l:ienQal Government, as also the pressure mounted by some ot the opposition parties to otsrntss the I:3JP-led Governments in Uttar PradeSh, maharashtha, etc. If the Vajpayee Government was totally convinced about the law and order situation in Bihar, then it would have gone back to the President, pressing for the dismissal at the Habn Uevi Government. ~ rom the reports appearing in the press, the situatton In l:3ihar appears to be so bad that nothing less than President's rule could save the state. But the .. Union Government Claims that it is not pressing the President because it does not want to undermine the dignity ot the President. A Convenient way skirting an issue. I While the Sarkaria Commission had short listed the .conditions under which Art. 356 could be invoked, the Supreme Court had, in the Bomrnais case, Observed that "trns provision should be used only as the last resort." According to the apex court, this Article nas been abusld so much in the past that ithas affected the working of the constitution as a federal government. In invoking this Art, 356, the rule played by. the Governor is very 258 CENTRAL INDIA LAW QUARTERLY {2000 crucia!.lf the Governor once belonged to the party in power at the centre or was a bureaucrat close to those in power at the centre, then it the chances of his sending on adverse report about the conditions provailing in states ·ruled by the opposition parties are more. S.R. Bommai's ease 1994 This was the constitutional position in operation till Chief Minister S.A. Bommai's case in 1989 in Kamataka.It is no longer so after the 1994 nine-member Supreme Court bench decision in the case. With a view to making Art. 356 a powerful weapon in the hands of the Union Govemment, through the 42md Amendment 1976, the President's satisfaction for the making of a proclamation under Art. 356 had been made immune from judicial.review, but the 44 the amendment 1978 had removed that fetter. The.result is that the courts may now.interfere if the proclamation is matafide or the reasons disclosed for making the proclamation have no reasonable ground to the satisfaction of the President. Obviously a closer look at the jUdgment SuPreme Court's nine- judge bench judgment in the S;A.· Bommai case. is needed which interpretes Art. 356. This verdict delivered four years. ago significantly stipulates that the governor's report and another material which found favour with the cabinet to recommend Presidenfs rule in state can be looked in to by the court. This aspect would deter the President from accepting the recommendation of the council of Ministers of for invoking Art. 356 in respect of any state as a matter of course. These views were upheld by the Nine-judge bench of the Supreme Court in S.R. Bammai's case, was delivered in six separate judgments that showed concurrence on the issue whether a judicial review is permissible of the material on the basis of which the President had taken the decision and issued a proclamation. To Sum Up The Verdict Briefly I The validity of the proclamation is jUdicially revealable to the exten whether it was issued on the basis of any material at all, or whethel the material was relevant, or whether the proclamation was issued malafide, or was based on wholly malafide. or was based or wholly irrelevant and extraneous grounds. 'The court will not go into the Vol.XIIIJ ARTICLE 356 259 correctness of the material'or its adequacy. The court will not. intervene if the privilege is proper1y claimedfor.non-di8closure of the material can the ground that it involves considerations of secufityof the state. ; (b) The power to dissolve the assembly can be ex~rcis~'~nIY after the proclamation ~s apP~~ed by bottl the Houses of Parliam~nt. (c) . The court can restore the minist;y; mould the reliefs and'deelare as valRf the actionstaken by the President till~t date. The landmark judgment. in the Bommai'S case .acts as safeguard against the anbitary dismissal of' any state government, on ·the basis of the·. Governor's r~rt. In S.A. Bommai's case, the court has clearly subscribed to th~ view thatthe power under;Art..a56..is an exceptional one.and has to be resort~ to onlyoccassionally·· to ~t . the exigenci9$. of speci. situations. , ,.'), The court's ruling laid down that a·ministery's strength .sh~ld be. . tested on the floor of.the House, which "alone is constitutionally,ordained forum"and not by the "Private opinion of any individual, be it the governor or the President." Wh.i1e delivering the judgment in S.A. Bommai'$ case, the Supreme Court had clearly mentioned; some of·the situations which· do not amount to failure. of cons.itutjonal IllKhinery in·a stat~. These are basedon the reportof the Sarkaria Commission and have the approval of the Supreme Court: (i) Where a Ministry· resigns or is dismisSed on ·108ing majority. support and the Government. recommends imposition of President's· rute without exploring the possibility of installing or alternative government. (ii) Where there issit'uation ot internal ~turbance but all PQSSiblt· measures to contain the situaijon. by the Union in discharge of its.dj.lty, underArt. 356 have not been exhausted. (iii) Where..in general etections to the lokShabha, the ruling party in the Statehas suffered a massivedefeat. . (iv) Where no warning or opportunity .~ giv~ to the sijttegovernment to correct itself in cases where directiVes were'issued under Art.25~,257, etc. 260 CENTRAL INDIA LAW aUARTERLY [2000 (v)The power cannot be invoked' merely on the ground that there are seriousaltegations of corruption against the Rlinistry. II (vi) The power cannot be legitimately exercised' on the sole ground of strin~entfinancial~xigencies ot the state. In situations mentioned above, whereihvoking Art. 356 would not be justifi~, the union government can.esue directives under Art. 256 and 25i~theState Governments.lf the state ,government fails to fellow the directives, it shall be lawful for the President to,'hold that a situation has arisen in which the Government of the State can not be carried on in accordance with the provisions of the constitution and impose President's rule by invoking Art. 356. If used carefully,' judicioUSly, and without -malafide intentions, Art. 356 cah prove to "be a very useful tool in the hahds' of the Union Government for disciplining the state governments which tehd to go astray. If,politicisation of the Governor's appointment is stopped, then' it w6uld be difficult for the Union Government to invoke Art. 356 as and whehthey •like.' ;, 'I However,the Sarkaria Commission cautions against the use of the prOvision rnerelyto invite fresh elections in a state. Therefore Art. 356 as also the highly-recommeooed commissions' suggestions are on test. Epilogue : The core question, however, remains whether a proclamation under Art. 356 can stand the judicial test if it disturbs a state government' which enjoys majority in the house. Theretore,there is no crying need for scrapping thiS 'Art, esnas beenoemanded by many ihdividual and political parties. The future-governments at the centre should ensure that this Art., is in invoked only in the rarest of rare cares. Thepdlitical parties are not consistent in their attitude towers this provision. It is an irony that the use of this 'provision, which was envisaged by Ambedkar to "remain a dead letter." If the 'provisions of Art. ' 356 of the constitution are not read properly to give effect to them in manner to 'work the constitution effectively, then 'any form of government is likely to fail. The accountability of the" tuling 'party; the opposition political parties and the state g<:>vernor would remain only on paper and the real pOwers would only be'used to strengthen the party than being a government of the people, for the people and by the people. Vol.XIII] ARTICLE 356 261 Books LL.M. (S.H.U.)Lecturerin Law in Patna LawCollege, P.U. 1. V.N. Shukla's Constitution of India (Seventh Edn.) 2. M.P. Jain, 'Indian Constitutional Law (3rd Ed.) 3. H.M. Seervai,'Constitutional Law of India' (YoU & II 1968,Vol. III, 1979) Articles !. V.S. Deshp8nde, '11le President, His powersand their I;xerolse'(1971) v.13, Jill. , 2. W. Henry HoIl'n8$, 'PQW8(S of the. I~ President: Myth or ReeIity : A Plea for the study of Poweres of the President of. India, (1970); V. 12, Jill. 3. Alice Jacob, 'C8ntre-StateGoveromental R~1n the. Indian F " System', (1968); 10 Jill. . .... Paper" Magazine 1. TheFl'Or\tfihe, March, 1999. 2. :India TOday, MllJth.;AprIl, 1999: 3. The Times of India, New Delhi. 4. The Hindustan TII'\'l8S,. Ntw Delhi. Cue "