Article 356: Its Use and Misuse
This article focuses on Article 356 of the Indian Constitution and its misuse giving a historical perspective and the laid guidelines by Supreme Court to prevent its misuse.
Article 356 of the Indian Constitution providing for imposition of President Rule in the State was once again in the news in last few months. First it was Arunachal Pradesh and now it is Uttarakhand. In both the cases the imposition of president rule emanated from the political crisis that arose due to defection of ruling party lawmakers. At present, the legal battle is going in Supreme Court in the case of Arunachal Pradesh, and in the High Court in the case of Uttarakhand.
In this light, let us understand what Article 356 is, what its uses are and how it has often been misused by the party at the Centre.
What is Article 356?
Article 356, is one of the articles among the Emergency provisions of the Indian Constitution. It is an Article in part XVIII (Articles 352-360). The Article owes its genesis to Section 93 of the Government of India Act 1935, a section which essentially dealt with the "taking over of the Provincial Government by the Governor.
Article 356 of the Constitution says if the President, on receipt 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 cannot be carried on in accordance with the provisions of this Constitution, the President may by 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 of Parliament
(c) Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.
Like ordinances, the Constitution-makers intended for Article 356 to be used only as an ‘emergency provision’. During constituent assembly debates, Dr. Ambedkar made clear that “whether there is good government or not in the province (state) is not for the Centre to determine”, adding that he hoped that Article 356 would remain a “dead letter”.
The Misuse of Article 356
A cursory glance at the data shows that this has been far from the truth. Sarkaria Commission notes that since independence, it has been used over 100 times.
Perfectly legitimate state governments have sometimes been fired to either make them fall in line or to give the Union government’s own party a chance at obtaining power in the state. To claim legitimacy, Union governments have assumed precisely the role Dr. Ambedkar feared they would—that of being determinants of quality of governance in the states.
1970s and 80s will be remembered for the most spiteful use of Article 356. From the year 1971 to 1984, it was used 59 times with maximum being used in the period 1977-79 during which Morai Desai government ruled. It was used by the post-emergency Central government as vendetta against Congress-ruled state governments. Later, Indira Gandhi returned the favour after storming back to power in 1980 and during the period 1980-84 it was used 17 times.
Though Article 356 had been misused even by Jawaharlal Nehru to dismiss the majority Communist government of Kerala, Indira Gandhi is synonymous with having used it as a weapon against state governments. Its frequency increased sharply post-1967 when Congress party lost power in several states in India.
In fact, Indira Gandhi during emergency closed judicial review of even the Presidential order clamping Article 356 through the 38th Constitutional Amendment. However, thanks to the 44th Constitutional Amendment Act brought forth in 1978 by Morarji Desai, the original Article 356, as envisaged by Dr. Ambedkar, was restored.
Manipur has seen the most frequent application of Article 356. The deeply fragmented internal politics of the state, as well as long periods of violence, have often enabled the Union government to impose its fiat on the state.
Besides Manipur, the politically crucial states of Uttar Pradesh and Bihar, with their fragmented polity, have been on the centre’s radar for long.
Fall in the misuse of Article 356
The frequency of using Article 356 has been greatly reduced since mid-1990s despite an increasingly higher number of states being ruled by parties other than that in the central government.
This happened due to two factors: emboldening of regional parties and intervention by the Supreme Court.
Rise of regional parties
The mid-1990s witnessed fundamental change in the nature of Union governments. Before this period, even when coalition governments took power in Delhi, only a few national parties came to dominate the government.
The mid-1990s was marked by the rise of regional parties that lent an increasingly opportunistic and volatile character to Indian polity. This meant that the national parties were always on the lookout for new regional allies, and hence were wary of using Article 356 against their governments.
Besides having had direct political impact, the rise of regional parties also rejuvenated other institutional safeguards - the courts and the President - against arbitrary imposition of Article 356.
Supreme Court intervention
In 1994, the Supreme Court delivered the landmark SR Bommai judgment where the Court discussed at length provisions of Article 356 and related issues. This case had huge impact on Centre-State Relations. The misuse of Article 356 was stopped after this judgment.
In the Bommai case, the apex court cited the strengthening of regional parties to posit that it was no longer the prerogative of Union government to determine the quality of governance in states, and dismissal of a state government run by a different party was bound to raise eyebrows.
Guidelines laid down by the Supreme Court
In the said case, the SC laid down certain guidelines so as to prevent the misuse of A356 of the constitution.
• The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
• Centre should give a warning to the state and a time period of one week to reply.
• The court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:
a) Is there any material behind the proclamation?
b) Is the material relevant?
c) Was there any mala fide use of power?
• If there is improper use of A356 then the court will provide remedy.
• Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
• Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery
• Article 356 shall be used sparingly by the centre; otherwise it is likely to destroy the constitutional structure between the centre and the states.