Article 356: ‘The dead letter’ comes alive once again

That is what Ambedkar had thought of the fate of Article 356. It continues to be misused in political battles. The judiciary has set precedents but they do not provide adequate relief

gyanant

Gyanant Singh | April 28, 2016 | New Delhi


#Article 356   #Harish Rawat   #uttarakhand   #president's rule   #SR Bommai case  
Harish Rawat
Photo: Arun Kumar

On August 4, 1949, Dr BR Ambedkar, while brushing aside the objections that were raised in the constituent assembly over adoption of emergency provisions, such as the president’s rule in states, stated that “every part of the Constitution” could be abused for political purposes. He was right but no other topic has probably kept the nation as engrossed as finding ways to guard against its abuse. 

 
Article 356 of the Indian constitution – which empowers the centre to take over the reins of a state in case of a breakdown of the constitutional machinery – has been a double-edged sword often coming under the scanner. It has been criticised for disturbing the federal structure of the constitution by leaving scope for misuse against lawfully-elected provincial governments led by rival political parties. Even though there has been a constant effort by the judiciary to plug its misuse, a couple of commissions which looked into the matter, also submitted recommendations on the same.
 
While the challenge at present is to ensure that Article 356 is used sparingly, Ambedkar, while seeking adoption of Articles 355 and 356, had ironically stressed that members ought to expect that “such articles will never be called into operation and that they would remain a dead letter”. Though Ambedkar may have managed to cut short the debate, which had already taken over five hours, by seeking vote on the assumption that the provision would remain a dead letter, the debate since then has been unending with Article 356 – a provision unique to India – throwing up new challenges and posing fresh questions whenever invoked. The invocation of the provision by the BJP-led government at the centre, to dismiss the Congress government in Uttarakhand, is no exception.
 
Similar fears – of using the provision for political gains – were raised way back in 1949 by some constituent assembly members who had reasons to suspect a power based on provisions incorporated in the Government of India Act, 1935, made to ensure control of colonial rulers over elected provincial governments. While Article 356 has no parallel, a similar provision features in the 1973 Constitution of Pakistan which has drawn more from the 1935 Act. The power in Pakistan is vested in the president who can exercise it in his personal discretion and judgment.
 
Given the source, the Indian constitution also vests wide powers in this regard with the centre. Apart from the fact that Article 356 is broadly-defined, the intent of constitution-makers gets clear from several other provisions which supplement the centre’s power. Articles 256 and 257 empower the centre to issue directions to states on compliance of laws, Article 355 enjoins a duty on the centre to ensure that the government of a state is carried on in accordance with the constitution, and Article 365 allows a presumption that the government of a state cannot be carried on in accordance with the constitution if it fails to comply with the directions of the centre.
 
What has given a cause for concern is the centre’s habit of invoking the provision to attack state governments run by rival parties or formations. There can be no better proof of decisions getting influenced by political considerations than this: After the Janata government came to power in 1977 following the emergency, it invoked president’s rule to dismiss nine Congress governments. And when the Congress returned to power in 1980, it dismissed as many non-Congress governments. 
 
In fact, the Sarkaria Commission – constituted in 1983 to look into centre-state relations – noted that there was no such problem in the initial years after independence as the party governing the centre also ruled most of the states. The first controversial decision came with the dismissal of the elected communist government in Kerala in 1959. After the emergence of new regional parties, the invocation of president’s rule has become frequent. In fact, even an amendment was made in 1975 to immune president’s rule from a challenge in court. The provision was deleted by the post-emergency Janata government in 1978.
 
The persistent use of Article 356 after the 1970s only exposed the flaws in the provision, leading to judicial interventions. The provision now is best read in supreme court judgments which have restricted the discretionary powers of the centre by expanding the scope for judicial review of such proclamations. The precedents also allow judicial interference if the exercise of power by the centre is malafide or based on extraneous material, though courts are still barred from going into adequacy of material or the wisdom of the decision to invoke Article 356 under given circumstances.
 
Though state governments now cannot be legally dismissed for settling political scores, there has been no fall in the frequency with which the provision is used for achieving political ends. This is evident from the fact that most cases in the recent past have ended in favour of state governments.
 
Striking a balance still remains a challenge. The precedents have failed to arrest misuse as judicial delays generally put the centre, acting with mala fide intentions, in a win-win situation. While a dismissed state government merely gets a moral victory with the term of the assembly normally coming to an end before the decision, the centre – despite moral setback – many a time succeeds in the political objective of halting an opposition juggernaut.
 
In fact, the apex court in the landmark 1994 SR Bommai case held as unconstitutional the proclamations in Karnataka, Meghalaya and Nagaland but had no consequential relief to offer. “In view of the fact that fresh elections have since taken place and the new legislative assemblies and ministries have been constituted in all the three states, no relief is granted consequent upon the above declarations,” the court said. The victory in the 2006 Rameshwar Prasad case wherein proclamation in Bihar was held to be wrong was also an empty formality.
 
The trail of decisions starting from the State of Rajasthan case (1977) to the SR Bommai case (1994) to the Rameshwar Prasad case (2006) have drawn the line for the centre in a bid to protect the rights of democratically-elected governments in states. But there is yet to be an authoritative ruling on time-bound disposal of such cases. Further, fresh cases can throw up fresh challenges.
 
Take the case of Uttarakhand in which the high court on April 21 quashed the March 27 proclamation dismissing the Harish Rawat government – against which an appeal by the centre is pending consideration before the supreme court. Though the judicial worth of the high court order would depend on the decision of the SC, the high court may already have set a precedent of sorts by giving an expeditious hearing to the parties to ensure that judicial review does not remain a mere academic exercise.  
 
The case throws up a challenge for the SC as well. With the term of the state assembly ending early next year, the court needs to dispose of the matter expeditiously. It would do well by setting a time limit for disposal of such cases, making its Uttarakhand judgment another important precedent supplementing the Bommai ruling which is a milestone on exercise of emergency powers under Article 356. 

Singh is a Delhi-based lawyer.
(The article appears in May 1-15, 2016 edition of Governance Now)

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